CREDIT AGREEMENT

dated as of
May 19, 2022
among
THE CATO
 
CORPORATION,
 
a Delaware corporation,
The Initial Guarantors Listed Herein,
The Banks Listed Herein
and
XXXXX FARGO BANK, NATIONAL
 
ASSOCIATION
 
,
as Agent
 
AGREEMENT
 
dated
 
as
 
of
 
May
 
19,
 
2022
 
among
 
THE
 
CATO
 
CORPORATION,
 
a
 
Delaware
corporation,
 
CADEL
 
LLC,
 
a
 
Delaware
 
limited
 
liability
 
company,
 
CHW,
 
LLC,
 
a
 
Delaware
 
limited
 
liability
company,
 
CATO
 
OF TEXAS
 
L.P.,
 
a Texas
 
limited partnership,
 
CATOSOUTH
 
LLC, a
 
North Carolina
 
limited
liability
 
company,
 
xxxxxxxx.xxx,
 
LLC,
 
a
 
Delaware
 
limited
 
liability
 
company,
 
CATOWEST,
 
LLC,
 
a
 
Nevada
limited liability
 
company,
 
CATO
 
SOUTHWEST,
 
INC., a
 
Delaware corporation,
 
CATO
 
WO LLC,
 
a Delaware
limited
 
liability
 
company,
 
CATO
 
OF
 
FLORIDA
 
L.L.C.,
 
a
 
Florida
 
limited
 
liability
 
company,
 
CATO
 
OF
TENNESSEE,
 
LLC,
 
a
 
Tennessee
 
limited
 
liability
 
company,
 
CATO
 
OF
 
VIRGINIA,
 
LLC,
 
a
 
Virginia
 
limited
liability company,
 
CATO
 
OF NORTH
 
CAROLINA,
 
LLC, a
 
North Carolina
 
limited liability
 
company,
 
CATO
OF ILLINOIS,
 
LLC, a
 
Illinois limited
 
liability company, CATO OF SOUTH
 
CAROLINA, LLC,
 
a South
 
Carolina
limited liability
 
company, OHIO CATO STORES,
 
LLC, a
 
Ohio limited
 
liability company, CATO OF GEORGIA,
LLC, a Georgia limited liability
 
company, the BANKS listed on the signature pages
 
hereof and XXXXX FARGO
BANK, NATIONAL
 
ASSOCIATION
 
,
 
as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01
Definitions.
 
The terms as
 
defined in this
 
Section 1.01 shall,
 
for all purposes
of
 
this
 
Agreement
 
and
 
any
 
amendment
 
hereto
 
(except
 
as
 
otherwise
 
expressly
 
provided
 
or
 
unless
 
the
 
context
otherwise requires), have the meanings set forth herein:
“Acquisition” means
 
the acquisition of
 
(i) a
 
controlling equity
 
interest in another
 
Person (including
the purchase of an option, warrant or
 
convertible or similar type security to acquire such a
 
controlling interest at
the
 
time
 
it
 
becomes
 
exercisable
 
by
 
the
 
holder
 
thereof),
 
whether
 
by
 
purchase
 
of
 
such
 
equity
 
interest
 
or
 
upon
exercise of an option or warrant for, or conversion of securities into, such equity interest, or (ii) assets of another
Person
 
which
 
constitute
 
all
 
or
 
any
 
material
 
part
 
of
 
the
 
assets
 
of
 
such
 
Person
 
or
 
of
 
a
 
line
 
or
 
lines
 
of
 
business
conducted by such Person.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial
Institution.
“Affiliate”
 
of any Person
 
means (i) any other
 
Person which directly,
 
or indirectly through
 
one or
more intermediaries, controls such
 
Person, (ii) any other
 
Person which directly, or indirectly through one
 
or more
intermediaries, is controlled by or is
 
under common control with such Person,
 
or (iii) any other Person of
 
which
such Person
 
owns, directly
 
or indirectly,
 
20% or
 
more of
 
the common
 
stock or
 
equivalent equity
 
interests.
 
As
used
 
herein,
 
the
 
term
 
“control”
 
means
 
possession,
 
directly
 
or
 
indirectly,
 
of
 
the
 
power
 
to
 
direct
 
or
 
cause
 
the
direction
 
of
 
the
 
management
 
or
 
policies
 
of
 
a
 
Person,
 
whether
 
through
 
the
 
ownership
 
of
 
voting
 
securities,
 
by
contract or otherwise.
“Agent” means Xxxxx Fargo Bank, National
 
Association, in its capacity
 
as agent for
 
the Banks and
the Issuing Bank hereunder, and its successors and permitted assigns in such capacity.
“Agreement’’
 
means
 
this
 
Credit
 
Agreement,
 
together
 
with
 
all
 
amendments
 
and
 
supplements
hereto.
“Anti-Corruption Laws” means: (a) the U.S.
 
Foreign Corrupt Practices Act of 1977, as amended;
(b) the U.K.
 
Xxxxxxx Xxx 0000, as amended; and (c) any other anti-bribery or anticorruption laws, regulations or
ordinances in any jurisdiction in which Borrower or any other Loan Party is located or doing business.
 
 
 
 
“Anti-Money
 
Laundering
 
Laws”
 
means
 
any
 
and
 
all
 
laws,
 
statutes,
 
regulations
 
or
 
obligatory
government orders, decrees, ordinances
 
or rules related to
 
terrorism financing, money laundering,
 
any predicate
crime to money laundering or any financial record keeping, including any applicable provision of the PATRIOT
Act and
 
The Currency
 
and Foreign
 
Transactions Reporting Act
 
(also known
 
as the
 
“Bank Secrecy
 
Act,” 31
 
U.S.C.
§§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
“Applicable Margin” has the meaning set forth in Section 2.06(a).
“Assignee” has the meaning set forth in Section 9.07(c).
“Assignment and
 
Acceptance”
 
means an
 
Assignment and
 
Acceptance executed
 
in accordance
 
with
Section 9.07(c) in the form attached hereto as Exhibit H.
“Authority”
 
has the meaning set forth in Section 8.02.
“Available
 
Tenor”
 
means,
 
as
 
of
 
any date
 
of
 
determination
 
and
 
with
 
respect to
 
any 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 8.03(d).
“Bail-In Action” means
 
the exercise of
 
any Write-Down and Conversion Powers
 
by the applicable
Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation”
 
means (a) with
 
respect to any
 
EEA Member Country
 
implementing Article
55
 
of
 
Directive
 
2014/59/EU
 
of
 
the
 
European
 
Parliament
 
and
 
of
 
the
 
Council
 
of
 
the
 
European
 
Union,
 
the
implementing law,
 
regulation,
 
rule or
 
requirement for
 
such EEA
 
Member Country
 
from time
 
to time
 
which is
described in the
 
EU Bail-In Legislation
 
Schedule and (b)
 
with respect to
 
the United Kingdom,
 
Part I of
 
the United
Kingdom Banking Act 2009
 
(as amended from time
 
to time) and
 
any other law,
 
regulation or rule
 
applicable in
the United
 
Kingdom relating
 
to the
 
resolution of
 
unsound or
 
failing banks,
 
investment firms
 
or other
 
financial
institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bank”
 
means
 
each
 
bank
 
listed
 
on
 
the
 
signature
 
pages
 
hereof
 
as
 
having
 
a
 
Revolving
 
Credit
Commitment and their respective successors and assigns.
“Base Rate” means, at any time,
 
the highest of (a) the Prime Rate, (b) the Federal
 
Funds Rate plus
0.50% and
 
(c) Daily
 
Simple SOFR
 
in effect
 
on such
 
day plus
 
1.00%; each
 
change in
 
the Base
 
Rate shall
 
take
effect
 
simultaneously with
 
the corresponding
 
change or
 
changes in
 
the Prime
 
Rate, the
 
Federal Funds
 
Rate or
Daily Simple
 
SOFR, as
 
applicable (provided
 
that clause
 
(c) shall
 
not be
 
applicable during
 
any period
 
in which
Daily Simple SOFR
 
is unavailable or
 
unascertainable).
 
Notwithstanding the foregoing,
 
in no event
 
shall the Base
Rate be less than 1.00%.
“Base Rate Loan” means
 
a Revolving Credit Advance
 
during Interest Periods when
 
the applicable
Loan bears or is to bear interest at a rate based upon the Base Rate as provided in Section 2.06.
“Benchmark” means, initially, Daily Simple SOFR or Term SOFR, as applicable; provided that if
a Benchmark Transition Event has occurred with
 
respect to Daily Simple SOFR
 
or Term SOFR, as applicable, or
the applicable 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 8.03(a).
 
“Benchmark Replacement” means, with respect to any Benchmark Transition Event for any then-
current Benchmark,
 
the sum of:
 
(a) the
 
alternate benchmark
 
rate that
 
has been selected
 
by the
 
Agent and Borrower
as
 
the
 
replacement
 
for
 
such
 
Benchmark
 
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
such then-current Benchmark for
 
Dollar-denominated syndicated credit
 
facilities and (b) the
 
related Benchmark
Replacement Adjustment;
 
provided that,
 
if such
 
Benchmark Replacement
 
as so
 
determined would
 
be less
 
than
the Floor, such
 
Benchmark Replacement will be deemed
 
to be the Floor
 
for the purposes of
 
this Agreement and
the other Loan Documents.
“Benchmark Replacement
 
Adjustment” means,
 
with respect
 
to any
 
replacement of
 
the then-current
Benchmark with
 
an
 
Unadjusted
 
Benchmark Replacement,
 
the spread
 
adjustment,
 
or method
 
for
 
calculating or
determining such spread
 
adjustment, (which may
 
be a positive
 
or negative value
 
or zero) that
 
has been selected
by
 
the
 
Agent
 
and
 
Borrower
 
giving
 
due
 
consideration
 
to
 
(a)
 
any
 
selection
 
or
 
recommendation
 
of
 
a
 
spread
adjustment,
 
or
 
method
 
for
 
calculating
 
or
 
determining
 
such
 
spread
 
adjustment,
 
for
 
the
 
replacement
 
of
 
such
Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b)
any evolving
 
or then-prevailing
 
market convention
 
for determining
 
a spread
 
adjustment, or
 
method for
 
calculating
or determining such
 
spread adjustment, for
 
the replacement of
 
such Benchmark
 
with the applicable
 
Unadjusted
Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Date” means
 
the earliest to
 
occur of the following
 
events with respect
to any 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
 
(if
 
applicable)
 
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
 
(if applicable) of
such Benchmark (or such component thereof) continues to be provided on such date.
 
For the
 
avoidance of
 
doubt, if
 
the applicable
 
then-current Benchmark
 
has any
 
Available
 
Tenors,
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 any 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
 
(if applicable) 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 (if
 
applicable) 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
 
FRB,
 
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
 
(if applicable)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 (if
 
applicable)
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 (if
 
applicable) 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, if the applicable then-current Benchmark has any Available Tenors, 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,
 
with
 
respect
 
to
 
any
 
then-current
 
Benchmark,
 
the
period (if any)
 
(x) beginning at the
 
time that a Benchmark
 
Replacement Date with respect
 
to such Benchmark has
occurred if, at
 
such time,
 
no Benchmark Replacement
 
has replaced such
 
Benchmark for all
 
purposes hereunder
and
 
under
 
any
 
Loan
 
Document
 
in
 
accordance
 
with
 
Section
 
8.03
 
and
 
(y)
 
ending
 
at
 
the
 
time
 
that
 
a
 
Benchmark
Replacement
 
has
 
replaced
 
such
 
Benchmark
 
for
 
all
 
purposes
 
hereunder
 
and
 
under
 
any
 
Loan
 
Document
 
in
accordance with Section 8.03.
“Beneficial
 
Ownership
 
Certification”
 
means
 
a
 
certification
 
regarding
 
beneficial
 
ownership
 
as
required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 CFR § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject
to Title
 
I of ERISA, (b)
 
a “plan” as defined
 
in and subject to
 
Section 4975 of the
 
Code or (c)
 
any Person whose
assets include
 
(for purposes
 
of ERISA
 
section 3(42)
 
or otherwise
 
for purposes
 
of Title
 
I of
 
ERISA
 
or Section
4975 of the Code) the assets of any such “employee benefit plan” or “plan.”
“Borrower”
 
means
 
The
 
Cato
 
Corporation,
 
a
 
Delaware
 
corporation,
 
and
 
its
 
successors
 
and
permitted assigns.
“Capital Expenditures”
 
means for any
 
period the
 
sum of all
 
capital expenditures
 
incurred during
such period by
 
Borrower and
 
its Consolidated
 
Subsidiaries, as
 
determined in
 
accordance with
 
FASB
 
ASC 842,
which shall include,
 
without limitation, the
 
purchase or lease
 
of any assets
 
which if purchased
 
would constitute
fixed assets or which if leased would constitute a finance
 
lease or Type A lease (but excluding, for the avoidance
of doubt,
 
any operating
 
lease or
 
Type
 
B lease);
 
provided, however,
 
that Capital
 
Expenditures shall
 
not include
any such expenditures
 
(i) for replacements,
 
repairs or
 
acquisitions of
 
capital assets, to
 
the extent
 
made with the
proceeds
 
of
 
insurance
 
in
 
connection
 
with
 
a
 
casualty
 
event,
 
or
 
(ii) for
 
replacements,
 
repairs
 
or
 
acquisitions
 
of
capital assets, to the extent
 
made with proceeds from a
 
sale or other disposition
 
permitted under this Agreement
(within 180 days after receipt of such proceeds).
“Capital Lease
’’
means any lease of property that
 
would, in accordance with FASB
 
ASC 842, be
required to be
 
classified and accounted
 
for as a
 
finance lease or
 
Type
 
A lease (but
 
excluding, for the
 
avoidance
of doubt, any operating lease or Type B lease).
“Capital Lease
 
Obligations” means,
 
with respect
 
to any
 
Capital Lease,
 
the amount of
 
the obligation
of the lessee thereunder that would, in accordance
 
with GAAP,
 
appear as a liability on the balance sheet
 
of such
lessee in respect of such Capital Lease.
“Capital Stock”
 
shall mean
 
all shares,
 
options, partnership,
 
membership and
 
other interests
 
or other
equivalents
 
(howsoever
 
designated)
 
of
 
or
 
in
 
the
 
equity
 
of
 
a
 
Person,
 
whether
 
voting
 
or
 
nonvoting,
 
including,
without
 
limitation,
 
common
 
stock,
 
partnership
 
interests,
 
membership
 
interests,
 
warrants,
 
preferred
 
stock,
convertible debentures and all
 
agreements, instruments and documents
 
convertible, in whole or
 
in part, into any
one or more or all of the foregoing.
“Cash” shall mean legal currency of the United States of America.
“CERCLA” means
 
the Comprehensive
 
Environmental Response,
 
Compensation and
 
Liability Act,
42
 
U.S.C.
 
§9601
 
et
 
seq.,
 
as
 
amended
 
from
 
time
 
to
 
time,
 
and
 
all
 
rules
 
and
 
regulations
 
from
 
time
 
to
 
time
promulgated thereunder.
“CERCLIS”
 
means
 
the
 
Comprehensive
 
Environmental
 
Response
 
Compensation
 
and
 
Liability
Information System established pursuant to CERCLA.
“Closing Certificate” has the meaning set forth in Section 3.01(d).
“Closing Date” has the meaning set forth in the introductory paragraph of Section 3.01.
“Code” means the
 
Internal Revenue Code
 
of 1986, as
 
amended, or any
 
successor Federal tax
 
code.
 
Any reference to any provision of the
 
Code shall also be deemed to
 
be a reference to any successor
 
provision or
provisions thereof.
“Compliance Certificate” has the meaning set forth in Section 5.01(e).
“Conforming
 
Changes”
 
means,
 
with
 
respect
 
to
 
either
 
the
 
use
 
or
 
administration
 
of
 
an
 
initial
Benchmark 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
“Domestic
 
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,
 
and
 
other
 
technical,
administrative
 
or
 
operational
 
matters)
 
that
 
the
 
Agent
 
decides
 
may
 
be
 
appropriate
 
to
 
reflect
 
the
 
adoption
 
and
implementation
 
of
 
any
 
such
 
rate
 
or
 
to
 
permit
 
the
 
use
 
and
 
administration
 
thereof
 
by
 
the
 
Agent
 
in
 
a
 
manner
substantially consistent with market practice
 
(or, if the Agent decides that adoption
 
of any portion of such
 
market
practice is not administratively feasible or if the
 
Agent determines that no market practice for the
 
administration
of any
 
such rate
 
exists, in
 
such other
 
manner of
 
administration as
 
the Agent
 
decides is
 
reasonably necessary
 
in
connection with the administration of this Agreement and the other Loan Documents).
“Consolidated Operating Profits” means, for
 
any period, the Operating Profits
 
of Borrower and its
Consolidated Subsidiaries.
“Consolidated Subsidiary”
 
means at any
 
date any Subsidiary
 
or other entity
 
the accounts of
 
which,
in accordance with
 
GAAP,
 
would be consolidated
 
with those of
 
Borrower in its
 
consolidated and consolidating
financial statements as of such date.
“Consolidated Tangible Net Worth
 
’’ means Net Worth
 
less all Intangible Assets.
“Consolidated Total Assets” means, at any time, the total assets of Borrower and its Consolidated
Subsidiaries, determined on a consolidated
 
basis, as set forth or
 
reflected on the most recent
 
consolidated balance
sheet of Borrower and its Consolidated Subsidiaries, prepared in accordance with GAAP.
“Controlled
 
Group”
 
means
 
all
 
members
 
of
 
a
 
controlled
 
group
 
of
 
corporations
 
and
 
all
 
trades
 
or
businesses (whether or not incorporated)
 
under common control which,
 
together with Borrower,
 
are treated as a
single employer under Section 414 of the Code.
“Costs of Acquisition” means, with
 
respect to any Acquisition, as
 
at the date of entering into
 
any
agreement therefor, the sum of
 
the following (without duplication): (i) the value of the capital
 
stock, warrants or
options to acquire capital
 
stock of Borrower or
 
any Subsidiary to be
 
transferred in connection therewith,
 
(ii) the
amount of
 
any cash
 
and fair
 
market value
 
of other
 
property (excluding
 
property described
 
in clause
 
(i) and
 
the
unpaid principal
 
amount of
 
any debt
 
instrument) given
 
as consideration,
 
(iii) the
 
amount (determined
 
by using
the
 
face
 
amount
 
or
 
the
 
amount
 
payable
 
at
 
maturity,
 
whichever
 
is
 
greater)
 
of
 
any
 
Debt
 
incurred,
 
assumed
 
or
acquired by
 
Borrower or
 
any Subsidiary
 
in connection
 
with such
 
Acquisition, (iv)
 
all additional
 
purchase price
amounts
 
in
 
the
 
form
 
of
 
earnouts
 
and
 
other
 
contingent
 
obligations
 
that
 
should
 
be
 
recorded
 
on
 
the
 
financial
statements
 
of
 
Borrower
 
and
 
its
 
Subsidiaries
 
in
 
accordance
 
with
 
GAAP,
 
(v)
 
all
 
amounts
 
paid
 
in
 
respect
 
of
covenants not
 
to compete,
 
consulting agreements
 
that should
 
be recorded
 
on financial
 
statements of
 
Borrower
and its Subsidiaries in accordance with GAAP, and other affiliated contracts in connection with such Acquisition
and
 
(vi)
 
the
 
aggregate
 
fair
 
market
 
value
 
of
 
all
 
other
 
consideration
 
given
 
by
 
Borrower
 
or
 
any
 
Subsidiary
 
in
connection with such Acquisition.
 
For purposes of determining the Cost
 
of Acquisition for any transaction,
 
(A)
the capital stock of
 
Borrower shall be
 
valued (I) in
 
the case of capital
 
stock that is
 
then designated as a
 
national
market system security by the National Association of Securities Dealers, Inc. or is listed on a national securities
exchange, the average of the last reported bid and ask quotations or the last prices reported thereon, and (II) with
respect to any
 
other shares of capital
 
stock, as determined by
 
the Board of
 
Directors of Borrower and,
 
if requested
by the
 
Agent, determined
 
to be
 
a reasonable
 
valuation by
 
the independent
 
public accountants
 
referred to
 
in Section
5.01(a), (B) the capital
 
stock of any Subsidiary
 
shall be valued
 
as determined by the
 
Board of Directors
 
of such
Subsidiary and,
 
if
 
requested
 
by the
 
Agent,
 
determined
 
to
 
be
 
a
 
reasonable
 
valuation
 
by the
 
independent
 
public
accountants referred to in Section 5.01(a), and
 
(C) with respect to any Acquisition
 
accomplished pursuant to the
exercise of options or warrants or the conversion of securities, the
 
Cost of Acquisition shall include both the cost
of acquiring such option, warrant or convertible security as well as the cost of exercise or conversion.
“Daily Simple SOFR”
 
means, for any
 
day (a “Simple
 
SOFR Rate Day”),
 
a rate per
 
annum equal
to the greater of
 
(a) SOFR for the day
 
(such day, a “SOFR Determination Day”) that is
 
five (5)
 
U.S. Government
Securities Business
 
Days prior
 
to (i)
 
if such
 
Simple SOFR
 
Rate Day
 
is a
 
U.S. Government
 
Securities Business
Day,
 
such Simple
 
SOFR Rate
 
Day or
 
(ii) if
 
such Simple
 
SOFR Rate
 
Day is
 
not a
 
U.S. Government
 
Securities
Business
 
Day,
 
the
 
U.S.
 
Government Securities
 
Business
 
Day
 
immediately
 
preceding
 
such
 
Simple
 
SOFR
 
Rate
Day, in each case, as such SOFR
 
is published by the
 
SOFR Administrator on the SOFR
 
Administrator’s Website,
and (b)
 
the Floor.
 
If by
 
5:00 p.m.
 
on the
 
second (2nd)
 
U.S. Government
 
Securities Business
 
Day immediately
following
 
any
 
SOFR
 
Determination
 
Day,
 
SOFR
 
in
 
respect
 
of
 
such
 
SOFR
 
Determination
 
Day
 
has
 
not
 
been
published on the
 
SOFR Administrator’s
 
Website
 
and a Benchmark
 
Replacement Date with
 
respect to
 
the Daily
Simple
 
SOFR has
 
not occurred,
 
then SOFR
 
for such
 
SOFR Determination
 
Day will
 
be SOFR
 
as
 
published in
respect of the first preceding U.S. Government
 
Securities Business Day for which such
 
SOFR was published on
the SOFR
 
Administrator’s Website; provided that
 
any SOFR
 
determined pursuant
 
to this
 
sentence shall
 
be utilized
for purposes
 
of
 
calculation of
 
Daily Simple
 
SOFR
 
for no
 
more
 
than
 
three (3)
 
consecutive Simple
 
SOFR Rate
Days.
 
Any change
 
in Daily
 
Simple SOFR
 
due to
 
a change
 
in SOFR
 
shall be
 
effective from
 
and including
 
the
effective date of such change in SOFR without notice to Borrower.
 
“Daily
 
Simple
 
SOFR
 
Loan”
 
means
 
any
 
Loan
 
bearing
 
interest
 
at
 
a
 
rate
 
based
 
on
 
Daily
 
Simple
SOFR (other than pursuant to
 
the Daily Simple SOFR component of
 
the definition of “Base Rate”),
 
as provided
in Section 2.6(a).
“Debt” means with
 
respect to
 
any Person, without
 
duplication, (a) all
 
obligations of
 
such Person
for
 
borrowed
 
money,
 
(b)
 
all
 
obligations
 
of
 
such
 
Person
 
evidenced
 
by
 
bonds,
 
debentures,
 
notes
 
or
 
similar
instruments, or upon which
 
interest payments are
 
customarily made, (c) all
 
obligations of such Person
 
issued or
assumed
 
as
 
the
 
deferred
 
purchase
 
price
 
of
 
property
 
or
 
services
 
purchased
 
by
 
such
 
Person
 
(excluding
 
current
accounts payable
 
incurred
 
in
 
the
 
ordinary
 
course
 
of
 
business
 
and
 
due
 
within
 
twelve
 
months
 
of
 
the
 
incurrence
thereof)
 
which
 
would
 
appear
 
as
 
liabilities
 
on
 
the
 
balance
 
sheet
 
of
 
such
 
Person,
 
(d)
 
all
 
Debt
 
of
 
others
 
that
 
are
secured by any
 
Lien on any
 
asset of such
 
Person, whether or
 
not such Person
 
has assumed or
 
become liable for
the payment thereof,
 
(e) all Capital Lease
 
Obligations, (f) all
 
obligations of such
 
Person under Hedge
 
Agreements
(valued as
 
the termination
 
value thereof
 
computed in
 
accordance with
 
a method
 
approved by
 
the
 
International
Swap
 
Dealers
 
Association
 
and
 
agreed
 
to
 
by
 
such
 
Person
 
in
 
the
 
applicable
 
Hedge
 
Agreement,
 
if
 
any),
 
(g)
 
the
maximum amount of all letters of
 
credit issued or bankers’
 
acceptances facilities created for the
 
account of such
Person,
 
and,
 
without
 
duplication,
 
all
 
drafts
 
drawn
 
thereunder
 
(to
 
the
 
extent
 
unreimbursed),
 
(h)
 
all
 
unfunded
employee benefit
 
plan obligations
 
and liabilities,
 
(i) all
 
Debt of
 
others Guaranteed
 
by such
 
Person; (j)
 
the principal
portion of all
 
obligations of such
 
Person under any
 
synthetic lease, tax
 
retention operating lease,
 
off-balance sheet
loan
 
or
 
similar
 
off-balance
 
sheet
 
financing
 
product
 
where
 
such
 
transaction
 
is
 
considered
 
borrowed
 
money
indebtedness for tax
 
purposes but is classified
 
as an operating lease
 
under GAAP; (k) deferred
 
taxes and (1)
 
the
indebtedness of
 
any partnership
 
or unincorporated
 
joint venture
 
in which
 
such Person
 
is a
 
general partner
 
or a
joint venturer.
 
Notwithstanding the foregoing, the term “Debt” shall be understood
 
to exclude any indebtedness
or obligations owed from one Loan Party to another Loan Party.
“Debtor Relief Laws” means the Bankruptcy
 
Code of the United States
 
of America, and all other
liquidation,
 
conservatorship,
 
bankruptcy,
 
assignment
 
for
 
the
 
benefit
 
of
 
creditors,
 
moratorium,
 
rearrangement,
receivership,
 
insolvency,
 
reorganization,
 
or
 
similar
 
debtor
 
relief
 
laws
 
of
 
the
 
United
 
States
 
or
 
other
 
applicable
jurisdictions from time to time in effect.
“Default” means any
 
condition or event
 
which constitutes an
 
Event of Default
 
or which with
 
the
giving of notice or lapse of time or both would, unless cured or waived in writing, become an Event of Default.
“Default Rate” means, with respect to any Revolving Credit Advance, on any day, the sum of 2%
plus
 
the
 
then
 
highest
 
interest
 
rate
 
(including
 
the
 
Applicable
 
Margin)
 
which
 
may
 
be
 
applicable
 
to
 
such
 
Loan
hereunder (irrespective of whether any such type of Loan is actually outstanding hereunder).
“Defaulting Bank” means, any
 
Bank that (a) has
 
failed to (i) fund
 
all or any portion
 
of the Loans
required to be funded by
 
it hereunder within two
 
Domestic Business Days of the
 
date such Loans were required
to be funded hereunder
 
unless such Bank notifies the Agent
 
and Borrower in writing that
 
such failure is the result
of
 
such
 
Bank’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, or (ii) pay to the Agent,
 
any Issuing Bank,
 
or any other Bank any other amount required
 
to be paid by it
hereunder (including in respect of
 
participations in Letters of Credit) within two Domestic Business Days of the
date when
 
due, (b)
 
has notified
 
Borrower,
 
the Agent,
 
or any
 
Issuing Bank
 
in writing
 
that it
 
does not
 
intend to
comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing
or public
 
statement relates
 
to such
 
Bank’s
 
obligation
 
to fund
 
a Loan
 
hereunder and
 
states that
 
such position
 
is
based on such
 
Bank’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 Domestic Business Days after written request by the Agent or Borrower, to
confirm
 
in
 
writing
 
to
 
the
 
Agent
 
and
 
Borrower
 
that
 
it
 
will
 
comply
 
with
 
its
 
prospective
 
funding
 
obligations
hereunder (provided that
 
such Bank shall
 
cease to be
 
a Defaulting Bank
 
pursuant to this
 
clause (c) upon
 
receipt
of such written confirmation
 
by the Agent and
 
Borrower), or (d) has,
 
or has a
 
direct or indirect parent
 
company
that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver,
custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or assets, including the FDIC or any other state or federal regulatory
authority acting in such a capacity or (iii) become
 
the subject of a Bail-In Action; provided that a
 
Bank shall not
be a Defaulting
 
Bank solely by
 
virtue of the
 
ownership or acquisition
 
of any equity
 
interest in that
 
Bank 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 Bank 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
 
Bank
 
(or
 
such
 
governmental
authority)
 
to
 
reject,
 
repudiate,
 
disavow
 
or
 
disaffirm
 
any
 
contracts
 
or
 
agreements
 
made
 
with
 
such
 
Bank.
 
Any
determination by the
 
Agent or Borrower
 
that a Bank
 
is a Defaulting
 
Bank under any
 
one or more
 
of clauses (a)
through (d) above shall be conclusive
 
and binding absent manifest error,
 
and such Bank shall be
 
deemed to be a
Defaulting Bank upon delivery of written notice of such determination to Borrower, each
 
Issuing Bank and each
Bank.
“Designated Officer”
 
means
 
the president,
 
treasurer or
 
chief financial
 
officer of
 
a Loan
 
Party or
any other officer of a Loan Party authorized by resolution of the board of directors of such
 
Loan Party to engage
in the activity specified herein with respect to such officer.
“Dollars” or “$” means dollars in lawful currency of the United States of America.
“Domestic
 
Business
 
Day”
 
means
 
any
 
day
 
except
 
a
 
Saturday,
 
Sunday
 
or
 
other
 
day
 
on
 
which
commercial banks in North Carolina are authorized or required by law to close.
“Domestic Subsidiary” means any Subsidiary
 
that was formed under the laws
 
of the United States
or any state of the United States or the District of Columbia.
“EBITDAR” means for Borrower and its Subsidiaries for any period, an amount equal to the sum
of:
(a)
Net Income for such period;
plus
(a)
in each
 
case, to
 
the extent
 
deducted in
 
determining Net
 
Income for
 
such period,
 
without
duplication, (i) interest expense, (ii)
 
income Taxes, (iii) depreciation and amortization, (iv) impairment
 
expenses,
(v) non-cash
 
impairment charges
 
related to
 
one-time or
 
non-recurring expenses
 
at Borrower’s
 
stores, (vi)
 
non-
cash charges
 
or expenses
 
relating to
 
stock based
 
compensation (but
 
excluding any
 
non-cash charge
 
or expense
that represents an
 
accrual for
 
a cash expense
 
to be taken
 
in a future
 
period), plus
 
(d) the Gross
 
Rental Expense,
all as determined in accordance with GAAP.
“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 credit institution or investment firm established in any EEA Member Country.
“Environmental Authority”
 
means any federal,
 
state, local or
 
regional government
 
that exercises
any form of jurisdiction or authority under any Environmental Requirement.
“Environmental
 
Authorizations”
 
means
 
all
 
licenses,
 
permits,
 
orders,
 
approvals,
 
notices,
registrations or other legal prerequisites for conducting the business of a Loan Party or any Subsidiary of a Loan
Party required by any Environmental Requirement.
“Environmental
 
Judgments
 
and
 
Orders”
 
means
 
all
 
judgments,
 
decrees
 
or
 
orders
 
issued
 
by
 
an
Environmental Authority arising from or in any way associated with any Environmental Requirements.
“Environmental
 
Laws”
 
means
 
any
 
and
 
all
 
federal,
 
state,
 
and
 
local
 
statutes,
 
laws,
 
regulations,
ordinances, rules,
 
judgments,
 
orders, decrees,
 
permits,
 
concessions, grants,
 
franchises, licenses,
 
agreements
 
or
other governmental restrictions relating to
 
the environment or to emissions,
 
discharges or releases of
 
Hazardous
Materials into the environment, including, without limitation, ambient air, surface water, groundwater or land, or
otherwise
 
relating
 
to
 
the
 
manufacture,
 
processing,
 
distribution,
 
use,
 
treatment,
 
storage,
 
disposal,
 
transport
 
or
handling of Hazardous Materials or the clean-up or other remediation thereof.
“Environmental
 
Liabilities”
 
means
 
any
 
liabilities,
 
whether
 
accrued,
 
contingent
 
or
 
otherwise,
arising from and in any way associated with any Environmental Requirements.
“Environmental Notices” means actual notice from
 
any Environmental Authority or by any other
person or
 
entity,
 
of possible
 
or alleged
 
noncompliance with
 
or liability
 
under any
 
Environmental Requirement,
including without
 
limitation any
 
complaints, citations,
 
demands or
 
requests from
 
any Environmental
 
Authority
or
 
from
 
any
 
other
 
person
 
or
 
entity
 
for
 
correction
 
of
 
any
 
violation
 
of
 
any
 
Environmental
 
Requirement
 
or
 
any
investigations concerning any violation of any Environmental Requirement.
“Environmental Proceedings”
 
means any judicial or administrative proceedings arising from
 
or in
any way associated with any Environmental Requirement.
“Environmental
 
Releases”
 
means
 
releases
 
as
 
defined
 
in
 
CERCLA
 
or
 
under
 
any
 
applicable
Environmental Law.
“Environmental
 
Requirements”
 
means
 
any
 
legal
 
requirement
 
relating
 
to
 
any
 
applicable
Environmental Law and applicable to a Loan Party, any Subsidiary of a Loan Party or the Properties.
“ERISA” means the Employee
 
Retirement Income Security Act
 
of 1974, as amended
 
from time to
time, or any successor
 
law.
 
Any reference to any
 
provision of ERISA shall
 
also be deemed to
 
be a reference to
any successor provision or provisions thereof.
“EU Bail-In
 
Legislation Schedule” means
 
the EU
 
Bail-In Legislation
 
Schedule published
 
by the
Loan Market Association (or any successor thereto), as in effect from time to time.
“Event of Default” has the meaning set forth in Section 6.01.
“FDIC” means the Federal Deposit Insurance Corporation.
 
“Federal Funds
 
Rate” means,
 
for any
 
day,
 
the rate
 
per annum
 
(rounded upward,
 
if necessary,
 
to
the next higher 1/100th of 1%) equal
 
to the weighted average of the
 
rates on overnight Federal funds transactions
with members of the Federal
 
Reserve System arranged by Federal
 
funds brokers on such
 
day, as published by the
Federal Reserve Bank of New York on the Domestic Business Day next succeeding such day, provided that (i) if
the day for which such rate is to be determined is not a Domestic Business Day,
 
the Federal Funds Rate for such
day shall be such rate on such
 
transactions on the next preceding Domestic
 
Business Day as so published on the
next succeeding Domestic Business
 
Day,
 
and (ii) if
 
such rate is not
 
so published for any
 
day,
 
the Federal Funds
Rate for
 
such day shall
 
be the average
 
rate charged to
 
Xxxxx Fargo on such day
 
on such transactions
 
as determined
by the Agent.
“Financials” or
 
“Financial
 
Statements”
 
means
 
the
 
consolidated
 
balance
 
sheet
 
and
 
statements
 
of
income and cash flow to be delivered to the Banks by the Loan Parties pursuant to Section 5.01 hereof.
“Fiscal Quarter”
 
means any fiscal quarter of Borrower.
“Fiscal Year
 
”
 
means any fiscal year of Borrower.
“Fixed Charges”
 
for any
 
period means
 
the sum
 
of (i)
 
Cash interest
 
expense for
 
such period,
 
(ii)
Gross
 
Rental
 
Expense
 
for
 
such
 
period
 
and
 
(iii)
 
current
 
maturities
 
of
 
long
 
term
 
Debt
 
of
 
Borrower
 
and
 
its
Consolidated Subsidiaries for such period, all as determined in accordance with GAAP.
“Floor” means a rate of interest equal to 0%.
“Fort
 
Mill
 
Land”
 
means
 
the
 
real
 
property
 
owned
 
by
 
Borrower
 
or
 
any
 
Domestic
 
Subsidiary
 
of
Borrower located in York
 
County, South
 
Carolina, consisting of approximately 381 gross acres
 
of land as of the
Closing Date.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“GAAP” means generally accepted accounting principles applied on a basis consistent with those
which, in
 
accordance with
 
Section 1.02,
 
are to
 
be used
 
in making
 
the calculations
 
for purposes
 
of determining
compliance with the terms of this Agreement.
“Gross Rental Expense” means for
 
any period the rental
 
expense under non-cancelable operating
leases
 
(including
 
without
 
limitation
 
any
 
contingent
 
rent
 
and
 
monthly
 
percentage
 
rent
 
payable
 
with
 
respect
thereto),
 
amortization
 
of
 
deferred
 
rent
 
and
 
payments
 
under
 
equipment
 
leases,
 
in
 
each
 
case
 
for
 
such
 
period
 
of
Borrower and its Subsidiaries on a consolidated basis determined in accordance with GAAP.
“Guarantee” by any
 
Person means any obligation,
 
contingent or otherwise, of
 
such Person directly
or indirectly
 
guaranteeing any Debt
 
or other obligation
 
of any other
 
Person and,
 
without limiting
 
the generality
of the foregoing, any obligation,
 
direct or indirect, contingent or otherwise, of
 
such Person (i) to secure, purchase
or pay (or
 
advance or supply
 
funds for the
 
purchase or payment
 
of) such Debt or
 
other obligation (whether
 
arising
by virtue
 
of partnership
 
arrangements, by
 
agreement to keep-well,
 
to purchase
 
assets, goods,
 
securities or
 
services,
to provide
 
collateral security,
 
to take-or-pay,
 
or to
 
maintain financial
 
statement conditions
 
or otherwise)
 
or (ii)
entered into for
 
the purpose of
 
assuring in any
 
other manner the
 
obligee of
 
such Debt or
 
other obligation of
 
the
payment thereof or to protect
 
such obligee against loss
 
in respect thereof (in whole
 
or in part), provided
 
that the
term Guarantee shall not include
 
endorsements for collection or
 
deposit in the ordinary
 
course of business.
 
The
term “Guarantee” used as a verb has a corresponding meaning.
“Guaranteed Obligations”
 
means any
 
and all
 
liabilities, indebtedness
 
and obligations
 
of any
 
and
every kind and nature,
 
heretofore, now or
 
hereafter owing, arising, due
 
or payable from
 
Borrower to the
 
Banks,
 
the Issuing Bank, the Agent, or any of them, arising under or evidenced by this Agreement, the Notes, the Letter
of Credit Agreements or any other Loan Document.
“Guarantors” means collectively:
 
(a) the Initial
 
Guarantors; and (b)
 
all Wholly Owned
 
Domestic
Subsidiaries acquired, formed or otherwise
 
in existence after the Closing Date,
 
as required by Section 5.26
 
(other
than any
 
Wholly Owned
 
Domestic Subsidiaries
 
existing as
 
of the
 
Closing Date
 
and that
 
are not
 
Initial Guarantors).
“Hazardous Materials” includes, without limitation,
 
(a) solid or hazardous
 
waste, as defined in the
Resource Conservation and Recovery Act of
 
1980, 42 U.S.C. §6901 et seq. and its implementing
 
regulations and
amendments, or in any
 
applicable state or local
 
law or regulation, (b)
 
any “hazardous substance”, “pollutant”
 
or
“contaminant”, as defined in CERCLA,
 
or in any applicable state
 
or local law or regulation, (c)
 
gasoline, or any
other petroleum
 
product or by-product,
 
including crude
 
oil or any
 
fraction thereof,
 
(d) toxic substances,
 
as defined
in
 
the
 
Toxic
 
Substances
 
Control
 
Act
 
of
 
1976,
 
or
 
in
 
any
 
applicable
 
state
 
or
 
local
 
law
 
or
 
regulation
 
and
 
(e)
insecticides, fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide, and Rodenticide Act of
1975, or in
 
any applicable state
 
or local law or
 
regulation, as each such
 
Act, statute or regulation
 
may be amended
from time to time.
“Hedge Agreement” means
 
any interest rate
 
or foreign
 
currency hedging
 
agreement entered
 
into
by one
 
or more
 
of the
 
Loan Parties
 
providing for
 
a swap,
 
cap, floor
 
or collar
 
agreement or
 
similar hedging
 
or
arrangement providing for
 
the transfer or
 
mitigation of
 
interest rate or
 
foreign currency risk,
 
either generally
 
or
under specific contingencies.
“Immaterial
 
Subsidiaries”
 
means
 
any
 
Subsidiary
 
that
 
would
 
not
 
constitute
 
a
 
“significant
subsidiary” of Borrower as defined in Rule 1.02 of Regulation S-X promulgated by the SEC.
“Initial Guarantors” means
 
collectively (i) Cato
 
West,
 
LLC, a Nevada
 
limited liability company;
(ii)
 
Cato
 
Southwest,
 
Inc.,
 
a
 
Delaware
 
corporation;
 
(iii)
 
CatoSouth
 
LLC,
 
a
 
North
 
Carolina
 
limited
 
liability
company; (iv)
 
CHW,
 
LLC, a
 
Delaware limited
 
liability company;
 
(v)
 
xxxxxxxx.xxx,
 
LLC, a
 
Delaware
 
limited
liability company;
 
(vi) CaDel
 
LLC, a
 
Delaware limited
 
liability company;
 
(vii) Cato
 
of Texas L.P., a Texas limited
partnership;
 
(viii) Cato
 
WO
 
LLC, a
 
Delaware limited
 
liability company;
 
(ix) Cato
 
of Florida
 
L.L.C., a
 
Florida
limited
 
liability
 
company;
 
(x)
 
Cato
 
of
 
Tennessee,
 
LLC,
 
a
 
Tennessee
 
limited
 
liability
 
company;
 
(xi)
 
Cato
 
of
Virginia, LLC, a Virginia
 
limited liability company; (xii) Cato of North Carolina, LLC, a North Carolina limited
liability company; (xiii) Cato of Illinois,
 
LLC, a Illinois limited liability company; (xiv) Cato of South
 
Carolina,
LLC, a South Carolina limited liability company; (xv) Ohio Cato Stores, LLC, a Ohio limited liability company;
and (xvi) Cato of Georgia, LLC, a Georgia limited liability company.
“Intangible Assets’’ means all
 
intangible assets
 
of Borrower
 
and its
 
Subsidiaries, on
 
a consolidated
basis, including,
 
without limitation,
 
covenants not
 
to compete,
 
and any
 
other
 
asset that
 
would be
 
treated as
 
an
intangible under GAAP.
“Interest Payment Date” means the first day of each month.
“Interest
 
Period”
 
means
 
as
 
to
 
any
 
Term
 
SOFR
 
Loan,
 
the
 
period
 
commencing
 
on
 
the
 
date
 
such
Term SOFR Loan is disbursed or converted
 
to or continued as a
 
Term SOFR Loan and ending on the
 
numerically
corresponding day
 
in the
 
first, second,
 
third or
 
sixth
 
month thereafter,
 
as Borrower
 
may elect
 
in the
 
applicable
Notice of Borrowing and subject to availability;
 
provided that:
(A)
the Interest
 
Period shall
 
commence on
 
the date
 
of advance
 
of or
 
conversion to
 
any Term
SOFR
 
Loan and,
 
in
 
the
 
case
 
of
 
immediately
 
successive
 
Interest Periods,
 
each
 
successive
 
Interest
 
Period
 
shall
commence on the date on which the immediately preceding Interest Period expires;
(B)
if any Interest
 
Period would otherwise
 
expire on a
 
day that is
 
not a Domestic
 
Business Day,
such
 
Interest Period
 
shall
 
expire on
 
the next
 
succeeding Domestic
 
Business
 
Day; provided
 
that if
 
any
 
Interest
Period would otherwise expire
 
on a day
 
that is not a
 
Domestic Business Day but
 
is a day
 
of the month after
 
which
no further
 
Domestic Business
 
Day occurs
 
in such
 
month, such
 
Interest Period
 
shall expire
 
on the
 
immediately
preceding Domestic Business Day;
(C)
(1) no
 
Interest Period
 
may be
 
selected which
 
begins before
 
the Termination Date
 
and would
otherwise end
 
after the
 
Termination Date; provided that
 
in any
 
event an
 
Interest Period
 
may be
 
less than
 
the period
selected in and only in the calendar month in which the Notes originate or mature;
 
(2) for any Base Rate Loan, a calendar
 
month; provided that the last Interest
 
Period under
this Agreement shall end on the Termination Date.
(D)
there shall be no more than eight (8) Interest Periods in effect at any time;
(E)
no tenor
 
that has
 
been removed
 
from this
 
definition pursuant
 
to Section
 
8.03(d) shall
 
be
available for specification in any Notice of Borrowing.
“Investment”
 
means any investment
 
in any Person,
 
whether by means
 
of purchase or
 
acquisition
of obligations or
 
securities of such
 
Person, capital
 
contribution to
 
such Person, loan
 
or advance to
 
such Person,
making
 
of
 
a
 
time
 
deposit
 
with
 
such
 
Person,
 
Guarantee
 
or
 
assumption
 
of
 
any
 
obligation
 
of
 
such
 
Person
 
or
otherwise.
“Investment Policy’’
 
means the Investment Policy
 
attached hereto as Schedule
 
1.01 - Investment
Policy.
“Issuing Bank’’ means Xxxxx
 
Fargo, and any successor in such capacity.
“Xxxx Xxxx’’ means Xxxx X.
 
Xxxxxx Xxxx and any of his children and trusts for their benefit.
“Lending Office’’ means, as to
 
each Bank, its
 
office located at
 
its address set
 
forth on
 
the signature
pages hereof (or identified on the signature pages hereof as its Lending
 
Office) or such other office as such Bank
may hereafter designate as its Lending Office by notice to Borrower and the Agent.
“Letter of
 
Credit’’ means the
 
letters of
 
credit issued
 
by the
 
Issuing Bank
 
pursuant to
 
Section 2.03(a)
and “Letter of Credit’’ means any one of such Letters of Credit, as any of such letters of credit may be extended,
renewed, replaced or amended from time to time.
“Letter
 
of
 
Credit
 
Advance’’
 
means
 
an
 
advance
 
made
 
by
 
the
 
Issuing
 
Bank
 
pursuant
 
to
 
Section
2.03(c).
“Letter
 
of
 
Credit
 
Agreement’’
 
means
 
any
 
agreement
 
entered
 
into
 
by
 
Borrower
 
and
 
the
 
Issuing
Bank pursuant to which a Letter of Credit is issued, as amended, modified or restated from time to time.
“Letter of
 
Credit Commitment’’
 
means, with
 
respect to
 
each Bank,
 
(i) the
 
amount designated
 
as
the Letter of Credit Commitment
 
set forth opposite the name
 
of such Bank on
 
the signature pages hereof, or
 
(ii)
as
 
to
 
any
 
Bank
 
which
 
enters
 
into
 
an
 
Assignment
 
and
 
Acceptance
 
(whether
 
as
 
transferor
 
Bank
 
or
 
as
 
Assignee
thereunder), the amount of such Bank’s Letter of Credit Commitment after giving effect to such Assignment and
Acceptance, in each case as such amount may be reduced from time to time pursuant to Sections 2.08 and 2.09.
“Lien”
 
means,
 
with respect
 
to any
 
asset,
 
any mortgage,
 
deed to
 
secure debt,
 
deed of
 
trust,
 
lien,
pledge,
 
charge,
 
security
 
interest,
 
security
 
title,
 
preferential
 
arrangement
 
which
 
has
 
the
 
practical
 
effect
 
of
constituting a security interest or encumbrance, servitude or
 
encumbrance of any kind in respect of such
 
asset to
secure or assure payment
 
of a Debt or
 
a Guarantee, whether by
 
consensual agreement or by
 
operation of statute
or other law, or by any agreement,
 
contingent or otherwise, to provide any of the foregoing.
 
For the purposes of
this
 
Agreement, Borrower
 
or
 
any
 
Subsidiary
 
shall
 
be
 
deemed to
 
own
 
subject
 
to
 
a
 
Lien any
 
asset
 
which
 
it
 
has
acquired or holds subject to the interest of
 
a vendor or lessor under any conditional
 
sale agreement, capital lease
or other title retention agreement relating to such asset.
“Loan”
 
means
 
a
 
Base
 
Rate
 
Loan,
 
Daily
 
Simple
 
SOFR
 
Loan,
 
Term
 
SOFR
 
Loan,
 
or
 
Revolving
Credit Advance and
 
“Loans’’ means Base Rate Loans,
 
Daily Simple
 
SOFR Loans,
 
Term SOFR Loans, Revolving
Credit Advances (which terms
 
are not necessarily exclusive
 
of the other said
 
terms, e.g., a Term SOFR Loan may
also be a Revolving Credit Advance) or any or all of them, as the context shall require.
“Loan Documents’’ means this Agreement,
 
the Notes, the
 
Letter of
 
Credit Agreements, the
 
Letters
of Credit, any other
 
document evidencing, relating to
 
or securing the Revolving
 
Credit Advances, or the
 
Letters
of Credit, and any other document or instrument delivered from time to time in
 
connection with this Agreement,
the
 
Notes,
 
the
 
Letter
 
of
 
Credit
 
Agreements,
 
the
 
Letters
 
of
 
Credit,
 
or
 
Revolving
 
Credit
 
Advances,
 
as
 
such
documents and instruments may be amended or supplemented from time to time.
“Loan Parties’’
 
means collectively Borrower
 
and each Guarantor
 
that is now
 
or hereafter a
 
party
to any of the Loan Documents.
“Margin Stock” means
 
“margin stock” as
 
defined in Regulations
 
T, U or X of
 
the FRB, as
 
in effect
from time to time, together with all official rulings and interpretations issued thereunder.
“Material Adverse Effect”
 
means a material adverse change in
 
or a material adverse effect
 
on (a)
the condition (financial
 
or otherwise), operations,
 
business or properties
 
of Borrower or
 
any of its
 
Consolidated
Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or the Banks under the
 
Loan Documents,
or
 
the
 
ability
 
of
 
the
 
Loan
 
Parties
 
to
 
perform
 
their
 
obligations
 
under
 
the
 
Loan
 
Documents,
 
or
 
(c)
 
the
 
legality,
validity or enforceability of any Loan Document.
“Minimum EBITDAR Coverage Ratio” means, as of the end
 
of any Fiscal Quarter, the ratio of (i)
EBITDAR for the four-Fiscal
 
Quarter period then ended
 
minus Taxes
 
paid in Cash for
 
such four-Fiscal Quarter
period to (ii) the Fixed Charges for such four-Fiscal Quarter period.
“Multiemployer Plan” shall have the meaning set forth in Section 4001(a)(3) of ERISA.
“Net Income”
 
means the consolidated net income
 
of Borrower and its Subsidiaries determined
 
in
accordance with GAAP.
“Net
 
Worth”
 
means
 
at
 
any
 
time
 
the
 
combined
 
stockholders’
 
equity
 
of
 
Borrower
 
and
 
its
Subsidiaries on a consolidated basis at such time determined in accordance with GAAP.
“Notes’’
 
means
 
each
 
of
 
the
 
Revolving
 
Credit
 
Notes,
 
or
 
any
 
or
 
all
 
of
 
them,
 
as
 
the
 
context
 
shall
require.
‘‘Notice of Borrowing’’
 
has the meaning set forth in Section 2.02.
“Obligations’’ means
 
and include the Revolving Credit Advances, Letter of Credit Advances and
all
 
other
 
loans,
 
advances,
 
indebtedness,
 
liabilities,
 
obligations,
 
covenants
 
and
 
duties
 
(including
 
post-petition
interest on the foregoing, to the extent lawful) owing, arising, due or payable jointly or severally, from
 
any Loan
Party to
 
Agent,
 
the
 
Issuing
 
Bank
 
or
 
any
 
Bank
 
of
 
any
 
kind
 
or
 
nature,
 
present
 
or
 
future,
 
howsoever
 
evidenced,
created,
 
incurred,
 
acquired
 
or
 
owing,
 
whether
 
arising
 
under
 
this
 
Agreement,
 
the
 
Notes,
 
the
 
Letter
 
of
 
Credit
 
Agreements, the
 
other Loan
 
Documents or
 
otherwise with
 
respect to
 
the Revolving
 
Credit Advances,
 
Letter of
Credit
 
Advances,
 
Letters
 
of
 
Credit,
 
or
 
the
 
other
 
Loan
 
Documents,
 
whether
 
direct
 
or
 
indirect
 
(including
 
those
acquired by
 
assignment), absolute
 
or contingent,
 
primary or
 
secondary,
 
due or
 
to become
 
due, now
 
existing or
hereafter arising
 
and however
 
acquired.
 
The term
 
includes, without
 
limitation, all
 
interest, charges,
 
expenses,
fees, attorneys’ fees
 
and any other
 
sums chargeable
 
to any Loan
 
Party by
 
Agent, the
 
Issuing Bank or
 
any Bank
under this Agreement, the Notes, the Letter of Credit Agreements or any of the other Loan Documents.
“OFAC” means The Office
 
of Foreign Assets Control of the U.S.
 
Department of the Treasury.
“Officer’s Certificate” has the meaning set forth in
 
Section 3.01(e).
“Operating Profits”
 
means, as applied to any Person for any period,
 
the operating income of such
Person for such period, as determined in accordance with GAAP.
“Participant” has the meaning set forth in Section 9.07(b).
“Patriot
 
Act”
 
means
 
the
 
Uniting
 
and
 
Strengthening
 
America
 
by
 
Providing
 
Appropriate
 
Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Pub,
 
L.
 
107-56, signed into law October 26, 2001.
“PBGC” means the
 
Pension Benefit Guaranty
 
Corporation or
 
any entity succeeding
 
to any or
 
all
of its functions under ERISA.
“Permitted Lien”
 
means the Liens permitted under Section 5.11.
“Person” means an individual, a corporation, a limited liability company, a partnership (including
without
 
limitation,
 
a
 
joint
 
venture),
 
an
 
unincorporated
 
association,
 
a
 
trust
 
or
 
any
 
other
 
entity
 
or
 
organization,
including, but not limited to, a government or political subdivision or an agency or instrumentality thereof.
“Plan”
 
means
 
any
 
“employee
 
benefit
 
plan”
 
within
 
the
 
meaning
 
of
 
Section
 
3(3)
 
of
 
ERISA
maintained by any member of the Controlled Group.
“Preferred
 
Stock”
 
means
 
Capital
 
Stock
 
of
 
any
 
of
 
Loan
 
Parties
 
that
 
gives
 
the
 
holder
 
thereof
 
a
preference
 
over
 
the
 
holders
 
of
 
such
 
Loan
 
Party’s
 
common
 
stock
 
with
 
respect
 
to
 
the
 
payment
 
of
 
dividends
 
or
liquidation proceeds, or otherwise designated by such Loan Party as “preferred stock.
’’
“Previous Loan Agreement” means
 
the Loan Agreement, by
 
and between the Loan
 
Parties and the
lenders named therein, dated as of August 22, 2003,
 
as amended.
“Prime Rate” means, at any time,
 
the rate of interest
 
per annum publicly announced from time
 
to
time by the
 
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 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.
“Principal Payment Date” means the first day of each month.
“Prohibited Transaction’’
 
shall have the meaning given such term under ERISA.
“Properties’’ means all real property owned, leased
 
or otherwise used
 
or occupied by a
 
Loan Party
or any Subsidiary of a Loan Party, wherever located, now or in the future.
“Pro Rata Share” of any amount means, with respect to any Bank at any time, the product of such
amount times a fraction the
 
numerator of which is
 
the amount of such Bank
 
’s Revolving
 
Credit Commitment at
such time and the denominator of which is the aggregate amount of the Revolving Credit Commitments of all of
the Banks at such time.
“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.
“Quarterly
 
Payment
 
Date”
 
means
 
March
 
31,
 
June
 
30,
 
September
 
30
 
and
 
December
 
31
 
of
 
each
year.
“Redeemable Preferred
 
Stock” of
 
any Person
 
means
 
any preferred
 
stock
 
issued by
 
such
 
Person
which is at any time prior
 
to the Termination
 
Date either (i) mandatorily redeemable (by sinking
 
fund or similar
payments or otherwise) or (ii) redeemable at the option of the holder thereof.
“Related
 
Parties”
 
means,
 
with
 
respect
 
to
 
any
 
Person,
 
such
 
Person’s
 
Affiliates
 
and
 
the
 
partners,
directors,
 
officers,
 
employees,
 
agents,
 
trustees,
 
administrators,
 
managers,
 
advisors
 
and
 
representatives
 
of
 
such
Person and of such Person’s Affiliates.
“Relevant
 
Governmental
 
Body”
 
means
 
the
 
Federal
 
Reserve
 
Board
 
and/or
 
the
 
Federal
 
Reserve
Bank of
 
New
 
York,
 
or
 
a
 
committee
 
officially
 
endorsed
 
or
 
convened
 
by
 
the
 
Federal Reserve
 
Board
 
and/or
 
the
Federal Reserve Bank of New York
 
or any successor thereto.
“Reportable Event” shall have the meaning given such term in ERISA.
“Required
 
Banks”
 
means
 
(A)
 
at
 
any
 
time
 
there
 
are
 
only
 
two
 
(or
 
fewer)
 
Banks
 
party
 
to
 
this
Agreement: (1) Banks
 
having at least
 
66 2/3% of
 
the aggregate amount
 
of the
 
Revolving Credit Commitments;
or
 
(2)
 
if
 
the
 
Revolving
 
Credit
 
Commitments
 
are
 
no
 
longer
 
in
 
effect,
 
Banks
 
holding
 
at
 
least
 
66
 
2/3%
 
of
 
the
aggregate outstanding principal amount of the Notes, Letter of Credit Advances and Undrawn Amounts; and (B)
at any
 
time there
 
are more than
 
two Banks
 
party to this
 
Agreement: (1)
 
Banks having
 
at least
 
51% of
 
the aggregate
amount
 
of
 
the
 
Revolving
 
Credit
 
Commitments
 
or,
 
(2)
 
if
 
the
 
Revolving
 
Credit
 
Commitments
 
are
 
no
 
longer
 
in
effect, Banks
 
holding at
 
least 51%
 
of the
 
aggregate outstanding
 
principal amount
 
of the
 
Notes, Letter
 
of Credit
Advances and Undrawn Amounts.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial
Institution, a UK Resolution Authority.
“Restricted Payment”
 
means
 
(i) any
 
dividend or
 
other distribution
 
on any
 
shares of
 
Borrower’s
capital stock (except dividends payable solely in shares of its capital stock) or
 
(ii) any payment on account of the
purchase,
 
redemption,
 
retirement
 
or
 
acquisition
 
of
 
(a)
 
any
 
shares
 
of
 
Borrower’s
 
capital
 
stock
 
(except
 
shares
acquired upon the
 
conversion thereof
 
into other shares
 
of its capital
 
stock) or (b)
 
any option, warrant
 
or other right
to acquire shares of Borrower’s capital stock.
“Revolving
 
Credit
 
Advance”
 
shall
 
mean
 
an
 
advance
 
made
 
to
 
Borrower
 
under
 
this
 
Agreement
pursuant to Section
 
2.01.
 
A Revolving Credit
 
Advance is: (i)
 
a “Base Rate
 
Advance” if such
 
Revolving Credit
Advance is a Base Rate Loan; (ii) a
 
“Daily Simple SOFR Advance” if such Revolving Credit Advance is a
 
Daily
Simple SOFR Loan; or (iii) a “Term SOFR Advance” if such Revolving Credit Advance is a Term
 
SOFR Loan.
“Revolving
 
Credit
 
Borrowing”
 
means
 
a
 
borrowing
 
hereunder
 
consisting
 
of
 
Revolving
 
Credit
Advances
 
made
 
to
 
Borrower
 
at
 
the
 
same
 
time
 
by
 
the
 
Banks
 
pursuant
 
to
 
Section
 
2.01.
 
A
 
Revolving
 
Credit
Borrowing is: (i) a “Base Rate Borrowing”
 
if such Revolving Credit Advances are Base
 
Rate Loans, (ii) a “Daily
Simple SOFR
 
Borrowing” if
 
such Revolving
 
Credit Advances
 
are Daily
 
Simple SOFR
 
Loans; or
 
(iii) a
 
“Term
SOFR
 
Borrowing”
 
if
 
such
 
Revolving
 
Credit
 
Advances
 
are
 
Term
 
SOFR
 
Loans.
A
“Daily
 
Simple
 
SOFR
Borrowing” and a “Term SOFR Borrowing” may collectively be referred to as a “SOFR Loan Borrowing”.
“Revolving
 
Credit
 
Commitment”
 
means,
 
with
 
respect
 
to
 
each
 
Bank,
 
(i)
 
the
 
amount
 
set
 
forth
opposite
 
the
 
name
 
of
 
such
 
Bank
 
on
 
the
 
signature
 
pages
 
hereof
 
and
 
denominated
 
as
 
the
 
Revolving
 
Credit
Commitment, or (ii)
 
as to any
 
Bank which enters
 
into an Assignment
 
and Acceptance (whether
 
as transferor Bank
or as Assignee thereunder), the amount of such Bank’s Revolving Credit Commitment after giving effect to such
Assignment and Acceptance, in each
 
case as such amount may
 
be reduced from time to time
 
pursuant to Sections
2.08 and 2.09.
“Revolving Credit
 
Notes” means
 
the promissory
 
notes of
 
Borrower,
 
substantially in
 
the form
 
of
Exhibit A hereto, evidencing
 
the obligation of
 
Borrower to repay the
 
Revolving Credit Advances, together
 
with
all amendments, consolidations,
 
modifications, renewals and
 
supplements thereto
 
and “Revolving
 
Credit Note”
means any one of such Revolving Credit Notes.
“Sanctioned Country” means, at
 
any time, a country,
 
region or territory which
 
is itself (or
 
whose
government is) the subject or
 
target of any Sanctions (including, as
 
of the Closing Date,
 
Cuba, Iran, North Korea,
Syria, Venezuela
 
and Crimea).
“Sanctioned
 
Person”
 
means,
 
at
 
any
 
time,
 
(a)
 
any
 
Person
 
listed
 
in
 
any
 
Sanctions-related
 
list
 
of
designated
 
Persons
 
maintained
 
by
 
OFAC
 
(including
 
OFAC’s
 
Specially
 
Designated
 
Nationals
 
and
 
Blocked
Persons List
 
and OFAC’s Consolidated Non-SDN
 
List), the
 
U.S. Department
 
of State,
 
the United
 
Nations Security
Council, the European
 
Union, any European
 
member state, Her
 
Majesty’s
 
Treasury,
 
or other
 
relevant sanctions
authority,
 
(b)
 
any
 
Person
 
operating,
 
organized
 
or
 
resident
 
in
 
a
 
Sanctioned
 
Country,
 
(c)
 
any
 
Person
 
owned
 
or
controlled by, or acting or purporting to act for or on behalf of, directly or indirectly, any such Person or Persons
described in clauses (a)
 
and (b), including a Person
 
that is deemed by
 
OFAC to be a Sanctions target based on the
ownership of
 
such legal
 
entity by
 
Sanctioned Person(s)
 
or (d)
 
any Person
 
otherwise a
 
target of
 
Sanctions, including
vessels and aircraft, that are designated under any Sanctions program.
“Sanctions”
 
means
 
any
 
and
 
all
 
economic
 
or
 
financial
 
sanctions,
 
sectoral
 
sanctions,
 
secondary
sanctions, trade embargoes
 
and restrictions and
 
anti-terrorism laws, including
 
but not
 
limited to
 
those imposed,
administered or enforced
 
from time to
 
time by the
 
U.S. government (including
 
those administered by
 
OFAC
 
or
the U.S. Department of State), the United Nations Security Council, the European Union, any European member
state, Her Majesty’s
 
Treasury,
 
or other relevant
 
sanctions authority in
 
any jurisdiction in
 
which (a) Borrower or
any
 
of
 
its
 
Subsidiaries
 
or
 
Affiliates
 
is
 
located
 
or
 
conducts
 
business,
 
(b)
 
in
 
which
 
any
 
of
 
the
 
proceeds
 
of
 
the
extensions of credit will be used, or (c) from which repayment of the extensions of credit will be derived.
“SEC” means the U.S. Securities and Exchange Commission.
“SOFR” means a rate
 
equal to the secured overnight
 
financing rate as administered
 
by the SOFR
Administrator.
“SOFR
 
Administrator”
 
means
 
the
 
Federal
 
Reserve
 
Bank
 
of
 
New
 
York
 
(or
 
a
 
successor
administrator of the secured overnight financing rate).
 
“SOFR Administrator’s
 
Website”
 
means the website
 
of the Federal
 
Reserve Bank of
 
New York,
currently
 
at
 
xxxx://xxx.xxxxxxxxxx.xxx,
 
or
 
any
 
successor
 
source
 
for
 
the
 
secured
 
overnight
 
financing
 
rate
identified as such by the SOFR Administrator from time to time.
“SOFR Loan” means any Daily Simple SOFR Loan or Term SOFR Loan.
“Subordinated Debentures”
 
means
 
any Debt
 
of
 
any
 
Loan Party
 
which expressly
 
contains in
 
the
instruments evidencing such Debt, or in the indenture or other similar instrument pursuant to which such Debt is
issued, subordination
 
provisions, satisfactory to
 
the Agent,
 
and substantially to
 
the effect
 
that the
 
holder agrees
that the Debt
 
evidenced by such
 
instrument, and any
 
renewals or extensions
 
thereof, shall at
 
all times and
 
in all
respects be subordinate and junior in right of payment to the Obligations hereunder.
“Subsidiary”
 
means any
 
corporation or
 
other entity of
 
which securities
 
or other
 
ownership interests
having ordinary
 
voting power
 
to elect
 
a majority
 
of the
 
board of
 
directors or
 
other persons
 
performing similar
functions are at the time directly or indirectly owned by Borrower or one
or
more of its Subsidiaries.
“Taxes”
 
has the meaning set forth in Section 2.12(c).
“Term SOFR” means, for any calculation, the Term SOFR Reference Rate for a tenor comparable
to the applicable Interest Period on the day (such day, the “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
 
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 Term SOFR Determination
 
Day; 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
 
the Floor,
 
then
Term SOFR shall be deemed to be the Floor.
“Term
 
SOFR Administrator” means
 
CME Group Benchmark
 
Administration Limited (CBA)
 
(or
a successor administrator of the Term SOFR Reference Rate selected by the Agent in its reasonable discretion).
“Term SOFR
 
Loan” means any Loan bearing interest at a rate based on
 
Term
 
SOFR, as provided
in Section 2.06(a).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Termination Date” means May 18, 2027.
“Third Parties”
 
means all lessees,
 
sublessees, licensees
 
and other
 
users of the
 
Properties, excluding
those users of the Properties in the ordinary course of Borrower’s business and on a temporary basis.
“Total
 
Unused Revolving
 
Credit Commitments”
 
means at
 
any date,
 
an amount
 
equal to:
 
(A) the
aggregate amount of the Revolving Credit Commitments of all of the Banks at such time, less (B) the sum of: (i)
the aggregate outstanding
 
principal amount
 
of the
 
Revolving Credit
 
Advances of
 
all of
 
the Banks
 
at such
 
time;
(ii) the aggregate outstanding principal amount of all Letter of Credit Advances; and
 
(iii) the aggregate Undrawn
Amounts.
“Transferee”
 
has the meaning set forth in Section 9.07(d).
“UK
 
Resolution
 
Authority”
 
means
 
the
 
Bank
 
of
 
England
 
or
 
any
 
other
 
public
 
administrative
authority having responsibility for the resolution of any UK Financial Institution.
“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.
 
 
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding
the Benchmark Replacement Adjustment.
“Undrawn Amount”
 
means, with respect
 
to any
 
Letter of
 
Credit, at
 
any time,
 
the maximum
 
amount
available to be drawn under
 
such Letter of Credit at
 
such time and “Undrawn Amounts”
 
means, at any time, the
sum of all Undrawn Amounts at such time.
“United States” means the United States of America.
“Unused Revolving Credit Commitment” means at any
 
date, with respect to any Bank, an amount
equal
 
to
 
its
 
Revolving
 
Credit
 
Commitment
 
less
 
the
 
sum
 
of:
 
(i)
 
aggregate
 
outstanding
 
principal
 
amount
 
of
 
its
Revolving Credit Advances; (ii) such Bank’s Pro Rata Share
 
of the aggregate outstanding principal amount
 
of all
Letter of Credit Advances; and (iii) such Bank’s Pro Rata Share of the Undrawn Amounts.
“U.S. Government
 
Securities Business
 
Day” means
 
any day
 
except for
 
(a) a
 
Saturday, (b) a Sunday
or (c)
 
a day
 
on which
 
the Securities
 
Industry and
 
Financial Markets
 
Association recommends
 
that the
 
fixed income
departments
 
of
 
its
 
members
 
be
 
closed
 
for
 
the
 
entire
 
day
 
for
 
purposes
 
of
 
trading
 
in
 
United
 
States
 
government
securities.
“Xxxxx
 
Fargo” means Xxxxx
 
Fargo Bank, National Association, a national banking association.
“Wholly Owned Domesti
 
c
 
Subsidiary” means
 
any Domestic
 
Subsidiary that
 
is a Wholly
 
Owned
Subsidiary.
“Wholly
 
Owned
 
Subsidiary”
 
(i)
 
any
 
corporation
 
100%
 
of
 
whose
 
Equity
 
Interest
 
is
 
at
 
the
 
time
owned
 
by
 
Borrower and/or
 
one
 
or
 
more
 
Wholly Owned
 
Subsidiaries
 
and
 
(ii)
 
any partnership,
 
limited
 
liability
company,
 
association,
 
joint
 
venture
 
or
 
other
 
entity
 
in
 
which
 
Borrower
 
and/or
 
one
 
or
 
more
 
Wholly
 
Owned
Subsidiaries has a 100% equity interest at such time.
“Write-Down and Conversion Powers”
 
means (a) with respect to any EEA
 
Resolution Authority,
the write-down
 
and conversion
 
powers of
 
such EEA
 
Resolution Authority
 
from time
 
to time
 
under the
 
Bail-In
Legislation for the applicable EEA Member Country, which
 
write-down and conversion powers are described in
the EU
 
Bail-In Legislation
 
Schedule and (b)
 
with respect
 
to the
 
United Kingdom,
 
any powers of
 
the applicable
Resolution Authority under the Bail-In Legislation
 
to cancel, reduce, modify or change the
 
form of a liability of
any UK Financial Institution or any contract or instrument under
 
which that liability arises, to convert all or part
of that liability
 
into shares, securities
 
or obligations of
 
that person or
 
any other person,
 
to provide that
 
any such
contract or
 
instrument is
 
to have
 
effect as
 
if a
 
right had
 
been exercised
 
under it
 
or to
 
suspend any obligation
 
in
respect of that
 
liability or any
 
of the powers
 
under that Bail-In
 
Legislation that are related
 
to or ancillary to
 
any
of those powers.
SECTION 1.02
Accounting
 
Terms
 
and
 
Determinations.
 
Except
 
as
 
otherwise
 
expressly
provided herein, all
 
terms of
 
an accounting or
 
financial nature shall
 
be construed in
 
accordance with GAAP,
 
as
in effect
 
from
 
time to
 
time;
 
provided that,
 
if
 
after the
 
date
 
hereof
 
there
 
occurs any
 
change in
 
GAAP
 
or in
 
the
application
 
thereof
 
on
 
the
 
operation
 
of
 
any
 
provision
 
hereof
 
and
 
Borrower
 
notifies
 
the
 
Agent
 
that
 
Borrower
requests
 
an
 
amendment
 
to
 
any
 
provision
 
hereof
 
to
 
eliminate
 
the
 
effect
 
of
 
such
 
change
 
in
 
GAAP
 
or
 
in
 
the
application
 
thereof
 
(or
 
if
 
the
 
Agent
 
notifies
 
Borrower
 
that
 
the
 
Required
 
Banks
 
request
 
an
 
amendment
 
to
 
any
provision hereof for such purpose), regardless of whether any such notice is given before or after such change in
GAAP or
 
in the
 
application thereof,
 
then such
 
provision shall
 
be interpreted
 
on the
 
basis of
 
GAAP as
 
in effect
and
 
applied
 
immediately
 
before
 
such
 
change
 
shall
 
have
 
become
 
effective
 
until
 
such
 
notice
 
shall
 
have
 
been
withdrawn or such
 
provision amended
 
in accordance
 
herewith.
 
Notwithstanding any other
 
provision contained
herein,
 
all
 
terms
 
of
 
an
 
accounting
 
or
 
financial
 
nature
 
used
 
herein
 
shall
 
be
 
construed,
 
and
 
all
 
computations
 
of
amounts
 
and
 
ratios
 
referred
 
to
 
herein
 
shall
 
be
 
made
 
(i)
 
without
 
giving
 
effect
 
to
 
any
 
election
 
under
 
Financial
 
 
 
 
 
Accounting Standards Board Accounting Standards Codification 000-00-00
 
(or any other Accounting Standards
Codification
 
or
 
Financial
 
Accounting
 
Standard
 
having
 
a
 
similar
 
result
 
or
 
effect)
 
to
 
value
 
any
 
Indebtedness
 
or
other liabilities of
 
Borrower or any
 
of its Subsidiaries
 
at “fair value”,
 
as defined therein,
 
and (ii) without
 
giving
effect
 
to
 
any treatment
 
of
 
Indebtedness in
 
respect
 
of
 
convertible debt
 
instruments
 
under Financial
 
Accounting
Standards Board Accounting Standards Codification 470-20 (or any other Accounting Standards Codification
 
or
Financial Accounting Standard
 
having a similar
 
result or effect)
 
to value any
 
such Indebtedness in
 
a reduced or
bifurcated
 
manner
 
as
 
described
 
therein,
 
and
 
such
 
Indebtedness
 
shall
 
at
 
all
 
times
 
be
 
valued
 
at
 
the
 
full
 
stated
principal amount thereof.
SECTION 1.03
Use of Defined Terms
 
.
 
All terms defined in this Agreement shall
 
have the
same meanings
 
when used
 
in any
 
of the
 
other Loan
 
Documents, unless
 
otherwise defined
 
therein or
 
unless the
context shall otherwise require.
SECTION 1.04
Terminology.
 
All personal pronouns used in this
 
Agreement, whether used
in the masculine,
 
feminine or neuter
 
gender, shall
 
include all other genders;
 
the singular shall include
 
the plural
and the
 
plural shall
 
include the
 
singular.
 
Titles
 
of Articles
 
and Sections
 
in this
 
Agreement are for
 
convenience
only, and neither limit nor amplify the provisions of this Agreement.
SECTION 1.05
References.
 
Unless
 
otherwise
 
indicated,
 
references
 
in
 
this
 
Agreement
 
to
“Articles”, “Exhibits’’
 
.
 
“Schedules’’,
 
and “Sections’’
 
are references to
 
articles, exhibits, schedules
 
and sections
hereof.
SECTION 1.06
Divisions.
 
For all purposes under the Loan Documents, in connection with
any division
 
or plan
 
of
 
division
 
under Delaware
 
law
 
(or
 
any comparable
 
event
 
under a
 
different
 
jurisdiction’s
laws): (a) if any
 
asset, right, obligation
 
or liability of any
 
Person becomes the
 
asset, right, obligation or
 
liability
of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent
Person, and (b)
 
if any new Person
 
comes into existence, such
 
new Person shall be
 
deemed to have
 
been organized
on the first date of its existence by the holders of its equity interests at such time.
SECTION 1.07
Rates.
 
The
 
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 Daily Simple SOFR, SOFR, 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
 
8.03, will be similar to, or produce the same
value or economic
 
equivalence of, or
 
have the same volume
 
or liquidity as, Daily
 
Simple SOFR, SOFR, 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
 
Agent and
 
its
 
Affiliates
 
or other
related entities
 
may engage
 
in transactions
 
that affect
 
the calculation
 
of Daily
 
Simple SOFR,
 
SOFR, the
 
Term
SOFR Reference Rate
,
 
or Term SOFR, any alternative, successor or replacement rate (including any Benchmark
Replacement) or any relevant adjustments thereto
 
and such transactions may be adverse
 
to Borrower.
 
The Agent
may select information
 
sources or
 
services in its
 
reasonable discretion to
 
ascertain Daily Simple
 
SOFR, SOFR,
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 Borrower,
 
any Bank or
 
any other person or
 
entity for damages
 
of any kind, including
 
direct or indirect,
special,
 
punitive,
 
incidental
 
or
 
consequential
 
damages,
 
costs,
 
losses
 
or
 
expenses
 
(whether
 
in
 
tort,
 
contract
 
or
otherwise and whether
 
at law
 
or in equity),
 
for any error
 
or calculation of
 
any such rate
 
(or component thereof)
provided by any such information source or service.
 
 
 
 
 
 
 
SECTION 1.08
Pro Forma
 
Adjustments for
 
Acquisitions.
 
To
 
the extent
 
Borrower or
 
any
Subsidiary makes
 
any Acquisition
 
permitted pursuant
 
to Section
 
5.04 during
 
the
 
period
 
of
 
four-Fiscal
 
Quarter
period of Borrower and its Subsidiaries
 
then most recently ended, the Minimum
 
EBITDAR Coverage Ratio and
Consolidated Tangible
 
Net Worth
 
shall be calculated
 
after giving pro
 
forma effect
 
thereto (including pro
 
forma
adjustments arising out
 
of events which
 
are directly
 
attributable to such
 
Acquisition, are factually
 
supportable and
are expected
 
to
 
have a
 
continuing
 
impact,
 
in
 
each case
 
as
 
determined on
 
a
 
basis
 
consistent
 
with Article
 
11
 
of
Regulation
 
S-X
 
of
 
the
 
Securities
 
Act
 
of
 
1933,
 
as
 
amended,
 
as
 
interpreted
 
by
 
the
 
SEC,
 
and
 
as
 
certified
 
by
 
a
Designated Officer),
 
as if
 
such Acquisition
 
(and any
 
related incurrence,
 
repayment or
 
assumption of
 
Indebtedness)
had occurred in the first day of such four-Fiscal Quarter period.
SECTION 1.09
Timing of Payment
 
or Performance.
 
Except as otherwise provided
 
herein,
when the payment of any
 
obligation or the performance of
 
any covenant, duty, or obligation is stated to be due
 
or
performance required on (or before) a
 
day which is not a Business Day, the date of such
 
payment or performance
shall
 
extend
 
to
 
the
 
immediately
 
succeeding
 
Business
 
Day,
 
and
 
such
 
extension
 
of
 
time
 
shall
 
be
 
reflected
 
in
computing interest or fees, as the case may be.
ARTICLE II
THE CREDITS
SECTION 2.01
Commitments to
 
Make Revolving
 
Credit Advances.
 
Each Bank
 
severally
agrees, on the terms and conditions set forth
 
herein, to make Revolving Credit Advances to
 
Borrower from time
to time
 
before the
 
Termination
 
Date; provided
 
that, immediately
 
after each
 
such Revolving
 
Credit Advance
 
is
made,
 
the
 
aggregate
 
outstanding
 
principal
 
amount
 
of
 
Revolving
 
Credit
 
Advances
 
by
 
such
 
Bank
 
together
 
with
such Bank’s
 
Pro Rata Share of
 
the aggregate outstanding
 
principal amount of
 
all Letter of Credit
 
Advances and
Undrawn Amounts
 
shall not
 
exceed the
 
amount of
 
its Revolving
 
Credit Commitment,
 
provided further
 
that the
aggregate principal amount of
 
all Revolving Credit
 
Advances, together with
 
the aggregate principal
 
amount of all
Letter of Credit
 
Advances and Undrawn
 
Amounts, shall not exceed
 
the aggregate amount
 
of the Revolving
 
Credit
Commitments of all of the Banks
 
at such time.
 
Each Revolving Credit Borrowing under this
 
Section shall be in
an aggregate principal
 
amount of
 
$500,000 or any
 
larger multiple
 
of $100,000 (except
 
that any such
 
Revolving
Credit Borrowing may
 
be in
 
the aggregate amount
 
of the Unused
 
Revolving Credit Commitments)
 
and shall be
made from
 
the several
 
Banks ratably
 
in proportion
 
to their
 
respective Revolving
 
Credit Commitments.
 
Within
the foregoing limits, Borrower may borrow under this Section, repay or,
 
to the extent permitted by Section 2.10,
prepay Revolving Credit Advances and reborrow under this Section at any time before the Termination Date.
SECTION 2.02
Method of Borrowing Revolving Credit Advances.
 
(a)
Borrower shall give
 
the Agent
 
notice in the
 
form attached hereto
 
as Exhibit
 
B (a “Notice
of Borrowing”)
 
prior to
 
(i) 11:00
 
A.M. (Winston
 
-Salem, North
 
Carolina time)
 
on the
 
same Domestic
 
Business
Day
 
of
 
each
 
Base
 
Rate
 
Borrowing,
 
and
 
(ii)
 
11:00
 
A.M.
 
(Winston-Salem,
 
North
 
Carolina
 
time)
 
on
 
the
 
same
Domestic Business Day of each SOFR Loan Borrowing, specifying:
(i)
the date of such Revolving Credit Borrowing, which shall be a
 
Domestic Business
Day;
(ii)
the aggregate amount of such Revolving Credit Borrowing;
(iii)
whether
 
such
 
Revolving
 
Credit
 
Borrowing
 
is
 
to
 
be
 
a
 
Daily
 
Simple
 
SOFR
Borrowing, Term SOFR Borrowing or Base Rate Borrowing, and
(iv)
in
 
the
 
case
 
of
 
a
 
SOFR
 
Loan
 
Borrowing,
 
the
 
duration
 
of
 
the
 
Interest
 
Period
applicable thereto, subject to the provisions of the definition of Interest Period.
 
(b)
Except
 
as
 
provided
 
in
 
Section
 
2.02(d)
 
of
 
this
 
Agreement,
 
upon
 
receipt
 
of
 
a
 
Notice
 
of
Borrowing, the Agent
 
shall promptly notify
 
each Bank of
 
the contents thereof
 
and of such
 
Bank’s ratable
 
share
of such
 
Revolving Credit
 
Borrowing and
 
such Notice of
 
Borrowing shall not
 
thereafter be
 
revocable by Borrower.
(c)
Except
 
as
 
provided
 
in
 
Section
 
2.02(d)
 
of
 
this
 
Agreement,
 
not
 
later
 
than
 
12:00
 
PM.
(Winston-Salem, North Carolina time) on the date of each Revolving Credit Borrowing, each Bank shall (except
as provided
 
in subsection
 
(d) of
 
this Section)
 
make available
 
its ratable
 
share of
 
such Revolving
 
Credit Borrowing,
in Federal
 
or other
 
funds immediately
 
available in
 
Winston-Salem,
 
North Carolina,
 
to the
 
Agent at
 
its address
referred to in
 
or specified
 
pursuant to
 
Section 9.01.
 
Unless the
 
Agent determines that
 
any applicable
 
condition
specified in Article III
 
has not been satisfied, the
 
Agent will make the funds
 
so received from the Banks
 
available
to
 
Borrower
 
at
 
the
 
Agent’s
 
aforesaid
 
address.
 
Unless
 
the
 
Agent
 
receives
 
notice
 
from
 
a
 
Bank,
 
at
 
the
 
Agent’s
address referred to in Section 9.01, no later than 4:00 PM. (local time at such address) on the Domestic Business
Day before
 
the date
 
of a
 
Revolving Credit
 
Borrowing stating
 
that such
 
Bank will
 
not make
 
a Revolving
 
Credit
Advance in
 
connection with
 
such Revolving
 
Credit Borrowing,
 
the Agent
 
shall be
 
entitled to
 
assume that
 
such
Bank will
 
make a
 
Revolving Credit
 
Advance in
 
connection with
 
such Revolving
 
Credit Borrowing
 
and, in
 
reliance
on such
 
assumption, the Agent
 
may (but
 
shall not
 
be obligated
 
to) make
 
available such
 
Bank’s
 
ratable share
 
of
such Revolving
 
Credit Borrowing
 
to Borrower
 
for the
 
account of
 
such Bank.
 
If the
 
Agent makes
 
such Bank’s
ratable share
 
available to
 
Borrower and
 
such Bank
 
does not in
 
fact make
 
its ratable
 
share of
 
such Revolving Credit
Borrowing
 
available on
 
such
 
date,
 
the
 
Agent
 
shall
 
be
 
entitled
 
to
 
recover such
 
Bank’s
 
ratable
 
share
 
from
 
such
Bank or
 
Borrower
 
(and
 
for
 
such
 
purpose
 
shall
 
be
 
entitled
 
to
 
charge
 
such
 
amount
 
to
 
any
 
account
 
of
 
Borrower
maintained with the
 
Agent), together with
 
interest thereon for
 
each day during
 
the period
 
from the date
 
of such
Revolving Credit Borrowing until such sum shall
 
be paid in full at a rate
 
per annum equal to the rate set
 
forth in
Section 2.06
 
for
 
each such
 
day
 
during such
 
period,
 
provided that:
 
(1)
 
any
 
such payment
 
by
 
Borrower of
 
such
Bank’s ratable share and interest thereon shall be without prejudice to any rights that Borrower
 
may have against
such Bank; and (2) until such Bank has paid its ratable share of such Revolving Credit
 
Borrowing, together with
interest
 
pursuant
 
to
 
the
 
foregoing,
 
it
 
will
 
have
 
no
 
interest
 
in
 
or
 
rights
 
with
 
respect
 
to
 
such
 
Revolving
 
Credit
Borrowing for any
 
purpose hereunder.
 
If such Bank
 
shall repay to
 
the Agent such
 
corresponding amount, such
amount
 
so
 
repaid
 
shall
 
constitute
 
such
 
Bank’s
 
Revolving
 
Credit
 
Advance
 
included
 
in
 
such
 
Revolving
 
Credit
Borrowing for purposes of this Agreement.
(d)
At the Agent’s
 
option and
 
to facilitate
 
the efficient
 
administration of this
 
Agreement, the
Agent shall
 
be entitled
 
to make
 
settlements and
 
adjustments on
 
a weekly
 
basis provided
 
that: (1)
 
all Revolving
Credit
 
Borrowings,
 
Revolving
 
Credit
 
Advances
 
and
 
all
 
payments
 
of
 
principal
 
with
 
respect
 
to
 
such
 
Revolving
Credit Borrowings
 
and
 
Revolving Credit
 
Advances shall
 
be shared
 
by the
 
Banks ratably
 
in proportion
 
to their
Revolving Credit Commitments and in
 
accordance with this Agreement; and (2)
 
all funds advanced by the
 
Agent
under this Agreement and all
 
funds received by the Agent
 
under this Agreement shall be made
 
or received, as the
case may
 
be, by
 
the Agent,
 
as agent
 
on behalf
 
of the
 
Banks and
 
shall not
 
constitute separate
 
loans or
 
advances
made by the Agent.
 
Unless the Agent receives notice from a
 
Bank, at the Agent’s
 
address referred to in Section
9.01,
 
no
 
later
 
than
 
4:00
 
RM.
 
(local
 
time
 
at
 
such
 
address)
 
on
 
the
 
Domestic
 
Business
 
Day
 
before
 
the
 
date
 
of
 
a
Revolving
 
Credit
 
Borrowing stating
 
that
 
such
 
Bank
 
will
 
not
 
make
 
a
 
Revolving
 
Credit
 
Advance in
 
connection
with
 
such
 
Revolving
 
Credit
 
Borrowing,
 
the
 
Agent
 
may
 
assume
 
that
 
each
 
Bank
 
will
 
make
 
a
 
Revolving
 
Credit
Advance in
 
connection with
 
each Revolving
 
Credit Borrowing
 
and, in
 
reliance on
 
such assumption,
 
the Agent
may make available such Bank’s
 
ratable share of such Revolving Credit
 
Borrowing to Borrower for the account
of such Bank.
 
No later than
 
11:00 A.M. (Winston-Salem, North Carolina time)
 
on Friday of
 
each week the
 
Agent
shall advise each
 
Bank of its
 
ratable share of
 
the Revolving Credit
 
Borrowings and payments
 
made or received
by the Agent for the period ending on the immediately
 
preceding Wednesday
 
.
 
No later than 2:00 PM. (Winston-
Salem, North Carolina
 
time) on such
 
Friday the Agent
 
and Banks shall
 
effect payments
 
(and credits)
 
so that all
Revolving Credit
 
Borrowings, Revolving
 
Credit Advances
 
and payments
 
with respect
 
to the
 
Revolving Credit
Borrowings and Letters
 
of Credit are shared
 
by the Banks ratably;
 
provided, however,
 
at any time:
 
(1) upon the
request of the Agent, each Bank shall, make its ratable share of any Revolving Credit Borrowing available to the
Agent on demand but in
 
no event later than one
 
Domestic Business Day following the
 
Agent’s demand;
 
and (2)
 
the Agent shall
 
be entitled to
 
recover such Bank’s
 
ratable share of
 
each Revolving Credit
 
Borrowing from such
Bank, together with interest thereon for
 
each day during the period from
 
the date of any such demand
 
until such
sum shall
 
be paid in
 
full at a
 
rate per annum
 
equal to the
 
rate set forth
 
in Section 2.06.
 
Each Bank’s
 
obligation
under this
 
Section
 
2.02(d)
 
shall
 
be
 
absolute
 
and
 
unconditional
 
and
 
shall
 
not
 
be
 
affected
 
by
 
any
 
circumstance,
including, without
 
limitation: (i)
 
any setoff,
 
counterclaim, recoupment,
 
defense or
 
other right
 
which such
 
Bank
or any other Person
 
may have against the
 
Agent requesting such adjustment
 
or payment or any
 
other Person for
any reason whatsoever; (ii) the occurrence or
 
continuance of a Default or an Event
 
of Default or the termination
of
 
the
 
Revolving
 
Credit
 
Commitment;
 
(iii)
 
any
 
adverse
 
change
 
in
 
the
 
condition
 
(financial
 
or
 
otherwise)
 
of
Borrower,
 
any
 
Guarantor
 
or
 
any
 
other
 
Person;
 
(iv)
 
any
 
breach
 
of
 
this
 
Agreement
 
or
 
any
 
of
 
the
 
other
 
Loan
Documents by
 
Borrower,
 
any Guarantor
 
or any
 
other Bank;
 
or (v)
 
any other
 
circumstance, happening
 
or event
whatsoever whether or not similar to any of the foregoing.
(e)
Borrower shall elect the initial Interest Period to a SOFR Loan by its Notice of Borrowing
given
 
to
 
the
 
Agent
 
pursuant
 
to
 
Section
 
2.02(a)
 
above.
 
Borrower
 
shall
 
elect
 
the
 
duration
 
of
 
each
 
succeeding
Interest Period by giving written notice to the Agent of such duration not
 
later than 11:00 A.M. (Winston-Salem,
North Carolina
 
time) on the
 
day which
 
is three
 
(3) Domestic Business
 
Days prior to
 
the last day
 
of the then
 
current
Interest Period applicable to
 
such SOFR Loan. If
 
the Agent does not receive
 
timely notice of the
 
Interest Period
elected by Borrower,
 
Borrower shall be deemed
 
to have elected to
 
continue such SOFR Loan
 
at a rate based
 
upon
Daily Simple
 
SOFR as
 
of the
 
last day
 
of the
 
Interest Period
 
applicable to
 
such SOFR
 
Loan subject
 
to Section
2.02(f) below.
 
(f)
Borrower
 
may,
 
on
 
the
 
last
 
Domestic
 
Business
 
Day
 
of
 
the
 
then
 
current
 
Interest
 
Period
applicable to any
 
outstanding SOFR
 
Loan, or on
 
any Domestic
 
Business Day
 
with respect
 
to Base
 
Rate Loans,
convert any such SOFR Loan into a
 
Base Rate Loan or any such Base
 
Rate Loan to a SOFR Loan,
 
in each case,
in the same aggregate principal amount, provided that (x) any
 
conversion of a SOFR Loan shall be made only on
the last Domestic Business Day of
 
the then current Interest Period applicable
 
to such SOFR Loan, and (y) at
 
the
Agent’s option, no conversion of a Base Rate Loan to a
 
SOFR Loan shall be made,
 
and no new SOFR Loan shall
be made,
 
during the
 
continuance of
 
an Event
 
of Default.
 
If Borrower
 
desires to
 
convert a
 
SOFR Loan
 
or Base
Rate
 
Loan,
 
Borrower
 
shall
 
give
 
the
 
Agent
 
written
 
notice
 
by
 
no
 
later
 
than
 
3:00
 
p.m.
 
(Winston-Salem,
 
North
Carolina time)
 
(i) on
 
the day
 
which is
 
three (3)
 
Domestic Business
 
Days prior
 
to the
 
date on
 
which such
 
conversion
is to occur with
 
respect to a conversion
 
from a Base Rate
 
Loan to a SOFR
 
Loan, or (ii) on
 
the day which is
 
one
(1) Domestic
 
Business Day
 
prior to
 
the date
 
on which
 
such conversion
 
is to
 
occur (which
 
date shall
 
be the
 
last
Domestic Business Day of the Interest Period
 
for the applicable SOFR Loan) with respect
 
to a conversion from a
SOFR Loan to
 
a Base Rate Loan,
 
specifying, in each
 
case, the date
 
of such conversion,
 
the SOFR Loan(s)
 
or Base
Rate Loan(s)
 
to be
 
converted and
 
if the
 
conversion is
 
to a
 
SOFR Loan,
 
the duration
 
of the
 
first Interest
 
Period
therefor.
SECTION 2.03
Letters of Credit.
(a)
The Issuing Bank may,
 
from time to time
 
upon request of
 
Borrower, in its
 
sole discretion
issue Letters of Credit for the account of Borrower, subject to satisfaction of the
 
conditions referenced in Section
3.03.
(b)
Each
 
Letter
 
of
 
Credit
 
shall
 
be
 
subject
 
to
 
the
 
provisions
 
of
 
this
 
Agreement
 
and
 
to
 
the
provisions set forth
 
in the Letter
 
of Credit Agreement
 
executed by Borrower
 
in connection with
 
the issuance of
such Letter of
 
Credit.
 
Borrower agrees to
 
promptly perform and
 
comply with
 
the terms and
 
conditions of each
Letter of Credit Agreement.
(c)
The
 
payment
 
by
 
the
 
Issuing
 
Bank
 
of
 
a
 
draft
 
drawn
 
under
 
any
 
Letter
 
of
 
Credit
 
shall
constitute for
 
all purposes
 
of this
 
Agreement a Letter
 
of Credit Advance
 
in the
 
amount of
 
such draft.
 
Upon written
demand by the Issuing Bank, with a copy to the Agent, each Bank shall purchase from the Issuing Bank, and the
 
Issuing Bank
 
shall sell
 
to each
 
Bank, a
 
participation interest
 
in such
 
Letter of
 
Credit Advance
 
equal to
 
such Bank’s
Pro Rata Share
 
of such Letter
 
of Credit Advance
 
as of the
 
date of such
 
purchase, by making
 
available to the
 
Agent
for the
 
account of
 
the
 
Issuing Bank,
 
in
 
Federal or
 
other
 
funds immediately
 
available
 
an amount
 
equal
 
to such
Bank’s
 
Pro Rata
 
Share of
 
the outstanding
 
principal
 
amount of
 
such
 
Letter of
 
Credit Advance.
 
Promptly
 
after
receipt thereof, the
 
Agent shall transfer
 
such funds to the
 
Issuing Bank.
 
Borrower hereby agrees
 
to each such
 
sale
and purchase of
 
participation interests
 
in Letter of
 
Credit Advances
 
outstanding from
 
time to
 
time.
 
Each Bank
agrees
 
to
 
purchase
 
its
 
participation
 
interest
 
in
 
an
 
outstanding
 
Letter
 
of
 
Credit
 
Advance
 
on
 
(i)
 
the
 
Domestic
Business Day on which
 
demand therefor is made
 
by the Issuing
 
Bank, provided notice of
 
such demand is
 
given
not later
 
than 1:00
 
PM. (Winston
 
-Salem, North
 
Carolina time)
 
on such
 
Domestic Business
 
Day or
 
(ii) the
 
first
Domestic Business
 
Day next
 
succeeding the
 
date of
 
such demand
 
if notice
 
of such
 
demand is
 
given after
 
1:00
P.M.
 
(Winston-Salem,
 
North
 
Carolina
 
time)
 
on
 
any
 
Domestic
 
Business
 
Day.
 
The
 
Issuing
 
Bank
 
makes
 
no
representation or warranty and assumes no responsibility with respect to any sale and purchase of a participation
interest in any
 
Letter of Credit
 
Advance.
 
If and to
 
the extent
 
that any Bank
 
shall not
 
have so made
 
the amount
available to the Agent in connection with its purchase of a participation interest in any Letter of Credit Advance,
such Bank agrees to pay
 
to the Agent forthwith on
 
demand such amount together with
 
interest thereon, for each
day from the date of demand by the Issuing Bank,
 
until the date such amount is paid to the Agent, at
 
the Federal
Funds Rate for the account of the Issuing Bank.
(d)
The
 
obligation
 
of
 
each
 
Bank
 
to
 
purchase
 
a
 
participation
 
interest
 
in
 
any
 
Letter
 
of
 
Credit
Advance
 
pursuant
 
to
 
Section
 
2.03(c)
 
shall
 
be
 
unconditional
 
and
 
shall
 
not
 
be
 
affected
 
by
 
the
 
existence
 
of
 
any
Default, the failure to satisfy any condition set
 
forth in Section 3.1, 3.2 or 3.3 or
 
the termination of the Revolving
Credit Commitments or Letter of Credit Commitments
 
(whether by Borrower pursuant to Section 2.08
 
or by the
Agent pursuant to Section 6.1 or otherwise).
(e)
The
 
Issuing
 
Bank
 
shall
 
furnish
 
(A)
 
to
 
the
 
Agent
 
and
 
each
 
Bank
 
on
 
the
 
tenth
 
Domestic
Business Day of each April, July, October and January, a written report summarizing the issuance and expiration
dates of Letters of Credit issued during the preceding calendar quarter and
 
(B) to the Agent and each Bank upon
request a written report setting forth the aggregate Undrawn Amounts.
(f)
The failure
 
of any Bank
 
to purchase a
 
participation interest in
 
any Letter of
 
Credit Advance
shall not relieve any
 
other Bank of its
 
obligation hereunder to purchase
 
its participation interest
 
in any Letter of
Credit Advance on such date, but no Bank shall be responsible for the failure of any other Bank to so purchase a
participation interest on such date.
(g)
Borrower
 
shall
 
pay
 
to
 
the
 
Agent
 
for
 
the
 
account
 
of
 
each
 
Bank
 
that
 
has
 
purchased
 
a
participation
 
interest
 
in
 
a
 
Letter
 
of
 
Credit
 
Advance
 
on
 
the
 
earlier
 
of
 
demand
 
and
 
the
 
Termination
 
Date
 
the
outstanding principal amount of such
 
Letter of Credit Advance.
 
The Agent will promptly
 
distribute to each Bank
its ratable share
 
of any payment of
 
principal of or interest
 
on any Letter of
 
Credit Advance received
 
by the Agent;
provided, however,
 
that
 
in the
 
event that
 
such payment
 
received by
 
the Agent
 
is required
 
to be
 
returned, such
Bank will return to the Agent any portion thereof previously distributed by the Agent to it.
(h)
The
 
Issuing
 
Bank
 
will
 
notify
 
Borrower
 
and
 
the
 
Agent
 
promptly
 
of
 
the
 
presentment
 
for
payment
 
of
 
any
 
Letter of
 
Credit,
 
together
 
with
 
notice
 
of
 
the
 
date
 
such
 
payment
 
shall
 
be
 
made,
 
and
 
the
 
Agent
promptly will notify the Banks of such matters.
SECTION 2.04
Notes.
 
(a)
The Revolving
 
Credit Advances
 
of each
 
Bank shall
 
be evidenced
 
by a
 
single Revolving
Credit Note
 
payable to
 
the order
 
of such
 
Bank for
 
the account
 
of its
 
Lending Office
 
in an
 
amount equal
 
to the
original principal amount of such Bank’s Revolving Credit Commitment.
 
 
 
(b)
Upon receipt of each
 
Bank’s Notes
 
pursuant to Section 3.01,
 
the Agent shall
 
deliver such
Notes to such Bank.
 
Each Bank shall record, and prior to any transfer of its Notes
 
shall endorse on the schedule
forming a part thereof appropriate notations to
 
evidence, the date, amount and maturity
 
of, and effective interest
rate for,
 
each Revolving Credit
 
Advance, as the
 
case may be,
 
made by it,
 
the date and
 
amount of each
 
payment
of
 
principal
 
made
 
by
 
Borrower
 
with
 
respect thereto
 
and
 
such
 
schedule shall
 
constitute
 
rebuttable presumptive
evidence of the principal
 
amount owing and unpaid
 
on such Bank’s
 
Note; provided that
 
the failure of
 
any Bank
to make, or any error in making, any such recordation or endorsement shall not affect the obligation of Borrower
hereunder or
 
under the
 
Notes or
 
the ability
 
of any
 
Bank to
 
assign its
 
Notes.
 
Each Bank
 
is hereby
 
irrevocably
authorized by Borrower so
 
to endorse its Notes
 
and to attach to
 
and make a part
 
of any Note a
 
continuation of any
such schedule as and when required.
SECTION 2.05
Maturity
 
of
 
Loans.
 
Each
 
Revolving
 
Credit
 
Advance
 
included
 
in
 
any
Revolving Credit Borrowing shall mature,
 
and the principal amount
 
thereof shall be due and
 
payable, subject to
Section 6.01, on the Termination Date.
SECTION 2.06
Interest Rates.
 
(a)
“Applicable Margin”
 
means a percentage per
 
annum equal to (i)
 
in the case of
 
Revolving
Credit Advances maintained as (A) Base Rate Advances,
 
0.00%, and (B) Daily Simple SOFR Advances or Term
SOFR Advances, 1.00% and (ii) in the case of calculating the
 
unused fee pursuant to Section 2.07(a), 0.10% per
annum.
 
(b)
During each
 
Interest Period
 
in which
 
a Revolving
 
Credit
 
Advance is
 
a
 
Base Rate
 
Loan,
such
 
Base
 
Rate
 
Loan
 
shall
 
bear
 
interest
 
on
 
the
 
outstanding
 
principal
 
amount
 
thereof,
 
for
 
each
 
day
 
during
 
the
applicable Interest Period,
 
at a rate
 
per annum equal
 
to the Base
 
Rate for
 
such day plus
 
the Applicable Margin.
 
Any overdue principal of and, to the extent permitted by applicable law, overdue interest on any Base Rate Loan
shall bear
 
interest, payable
 
on demand,
 
for each
 
day until
 
paid in
 
full at
 
a rate
 
per annum
 
equal to
 
the Default
Rate.
(c)
During each
 
Interest Period
 
in which
 
a Revolving
 
Credit Advance
 
is an
 
Daily Simple
 
SOFR
Loan,
 
such
 
Daily
 
Simple
 
SOFR
 
Loan
 
shall
 
bear
 
interest
 
on
 
the
 
outstanding
 
principal
 
amount
 
thereof,
 
for
 
the
Interest
 
Period
 
applicable
 
thereto,
 
at
 
a
 
rate
 
per
 
annum
 
equal
 
to
 
Daily
 
Simple
 
SOFR
 
for
 
such
 
day
 
plus
 
the
Applicable Margin.
 
Any overdue principal of and, to the extent permitted by applicable law, overdue interest on
any Daily Simple SOFR Loan shall bear interest,
 
payable on demand, for each day until
 
paid in full at a rate per
annum equal to the Default Rate.
(d)
During each Interest Period in
 
which a Revolving Credit Advance is
 
a Term
 
SOFR Loan,
such
 
Term
 
SOFR
 
Loan shall
 
bear interest
 
on
 
the
 
outstanding
 
principal
 
amount
 
thereof, for
 
the
 
Interest Period
applicable
 
thereto,
 
at
 
a
 
rate
 
per
 
annum
 
equal
 
to
 
Term
 
SOFR
 
for
 
such
 
day
 
plus
 
the
 
Applicable
 
Margin.
 
Any
overdue principal
 
of and,
 
to the
 
extent permitted
 
by law,
 
overdue interest
 
on any
 
Term
 
SOFR Loan
 
shall bear
interest, payable on demand, for each day until paid at a rate per annum equal to the Default Rate.
(e)
Interest on each Base Rate Loan and SOFR Loan shall be payable for each Interest Period
on the
 
Interest Payment
 
Date immediately
 
succeeding the
 
last day
 
of the
 
Interest Period.
 
Notwithstanding the
foregoing,
 
(1)
 
all
 
accrued
 
unpaid
 
interest
 
on
 
the
 
Revolving
 
Credit
 
Advances
 
shall
 
be
 
paid
 
in
 
full
 
on
 
the
Termination
 
Date;
 
and
 
(2)
 
should
 
the
 
Revolving
 
Credit
 
Commitment
 
be
 
terminated
 
at
 
any
 
time
 
prior
 
to
 
the
Termination Date for any reason,
 
any and all
 
accrued unpaid interest
 
shall be paid
 
on the date
 
of such termination.
(f)
Each
 
Letter
 
of
 
Credit
 
Advance
 
shall
 
bear
 
interest
 
on
 
the
 
outstanding
 
principal
 
amount
thereof, payable on demand,
 
for each day from
 
the date such Letter
 
of Credit Advance is
 
made until paid in
 
full
at a rate per annum equal to the Base Rate, plus the Applicable Margin for Daily Simple SOFR Loans.
 
 
 
 
(g)
The Agent shall
 
determine each interest
 
rate applicable to
 
the Loans hereunder.
 
The Agent
shall give
 
prompt notice
 
to Borrower
 
and the
 
Banks by
 
telecopy of
 
each rate
 
of interest
 
so determined,
 
and its
determination thereof shall be conclusive in the absence of manifest error.
(h)
After the occurrence and
 
during the continuance of
 
a Default, the principal
 
amount of the
Revolving Credit Advances (and, to the extent
 
permitted by applicable law,
 
all accrued interest thereon) may,
 
at
the
 
election
 
of
 
the
 
Required
 
Banks,
 
bear
 
interest
 
at
 
the
 
Default
 
Rate;
 
provided,
 
however,
 
that
 
automatically
whether or not
 
the Required Banks
 
elect to do
 
so, any overdue
 
principal of
 
and, to the
 
extent permitted by
 
law,
overdue interest on
 
any Loan shall
 
bear interest payable
 
on demand, for
 
each day until
 
paid at a rate
 
per annum
equal to
 
the Default
 
Rate.
 
Interest shall continue
 
to accrue
 
after the
 
filing by
 
or against
 
any Loan
 
Party of
 
any
petition seeking any
 
relief in bankruptcy
 
or under any
 
act or law
 
pertaining to insolvency
 
or debtor relief,
 
whether
state, federal or foreign.
SECTION 2.07
Fees.
 
(a)
Borrower shall pay to the Agent for
 
the ratable account of each
 
Bank an unused fee equal
to
 
the
 
product
 
of:
 
(i)
 
the
 
aggregate
 
of
 
the
 
daily
 
average
 
amounts
 
of
 
such
 
Bank’s
 
Unused
 
Revolving
 
Credit
Commitment, times (ii) 0.10% per annum.
 
Such unused fee shall accrue from and including the Closing Date to
and including the
 
Termination Date.
 
Unused fees shall
 
be payable quarterly
 
in arrears
 
on each Quarterly
 
Payment
Date and on the
 
Termination Date; provided that should the Revolving Credit Commitments
 
be terminated at any
time prior to the Termination
 
Date for any reason, the
 
entire accrued and unpaid
 
fee shall be paid
 
on the date of
such termination.
(b)
Borrower shall pay to the Agent for the ratable account of each Bank, with respect to each
Letter
 
of
 
Credit,
 
a
 
per
 
annum
 
letter
 
of
 
credit
 
fee
 
(the
 
“Letter
 
of
 
Credit
 
Fee”)
 
equal
 
to
 
the
 
product
 
of:
 
(i)
 
the
aggregate
 
average
 
daily
 
Undrawn
 
Amounts,
 
times
 
(ii)
 
a
 
per
 
annum
 
percentage
 
equal
 
to
 
the
 
then
 
Applicable
Margin for Daily Simple SOFR Advances (as set
 
forth in Section 2.06(a)) (calculated in accordance
 
with Section
2.13).
 
Such Letter of Credit Fees shall be payable in arrears
 
for each Letter of Credit on each Quarterly Payment
Date during
 
the term
 
of each
 
respective Letter
 
of Credit
 
and on
 
the termination
 
thereof (whether
 
at its
 
stated expiry
date or earlier.)
SECTION 2.08
Optional
 
Termination
 
or
 
Reduction
 
of
 
Revolving
 
Credit
 
Commitments.
 
Borrower may,
 
upon at least
 
3 Domestic Business
 
Days’
 
irrevocable notice to
 
the Agent, terminate
 
at any time,
or proportionately reduce
 
from time to
 
time by an
 
aggregate amount of
 
at least
 
$500,000 or any
 
larger multiple
of $100,000,
 
the Revolving
 
Credit Commitments;
 
provided, however:
 
(1) each
 
termination or
 
reduction, as
 
the
case
 
may
 
be,
 
shall
 
be
 
permanent
 
and
 
irrevocable;
 
(2)
 
no
 
such
 
termination
 
or
 
reduction
 
shall
 
be
 
in
 
an
 
amount
greater than the Total
 
Unused Revolving Credit Commitments on
 
the date of such termination
 
or reduction; and
(3) no such reduction
 
pursuant to this
 
Section 2.08 shall result
 
in the aggregate
 
Revolving Credit Commitments
of all of the Banks to be reduced to an amount less than $10,000,000, unless the Revolving Credit Commitments
are terminated in their entirety,
 
in which case all
 
accrued fees (as provided
 
under Section 2.07) shall
 
be payable
on the effective date of such termination.
SECTION 2.09
Mandatory Reduction and Termination of Revolving Credit Commitments.
 
The Revolving
 
Credit Commitments shall
 
terminate on
 
the Termination Date and
 
any Revolving
 
Credit Advances
and
 
if
 
demand
 
had
 
not
 
been
 
earlier
 
made
 
Letter
 
of
 
Credit
 
Advances
 
then
 
outstanding
 
(together
 
with
 
accrued
interest thereon) shall be due and payable on such date.
SECTION 2.10
Optional Prepayments of Revolving Credit Advances.
 
(a)
Subject to any
 
payments required pursuant to
 
the terms of Article
 
VIII, upon one
 
Domestic
Business
 
Day
 
prior
 
written
 
notice,
 
Borrower
 
may
 
prepay
 
the
 
Revolving
 
Credit
 
Advances
 
in
 
whole
 
or
 
in
 
part
without premium or penalty (other than any payments required
 
pursuant to the terms of Article VIII) at any time,
 
 
or from time to time
 
in part in amounts aggregating at
 
least $500,000.00, or any larger
 
multiple of $100,000, by
paying the principal amount to be prepaid together with accrued interest thereon to the date of prepayment;
(b)
Upon receipt of a notice of prepayment pursuant to
 
this Section, the Agent shall promptly
notify each
 
Bank of
 
the contents
 
thereof and
 
of such
 
Bank’s
 
ratable share
 
of such
 
prepayment and
 
such notice
shall not thereafter be revocable by Borrower.
SECTION 2.11
Mandatory Prepayments of Revolving Credit Advances.
 
(a)
On
 
each
 
date
 
on
 
which
 
the
 
Revolving
 
Credit
 
Commitments
 
are
 
reduced
 
or
 
terminated
pursuant to Section
 
2.08 or Section
 
2.09, Borrower shall
 
repay or
 
prepay such principal
 
amount of the
 
outstanding
Revolving Credit
 
Advances, if
 
any (together
 
with interest
 
accrued thereon
 
and any
 
amounts due
 
under Section
8.05(a)), as may be necessary so that after
 
such payment the aggregate unpaid principal amount of the
 
Revolving
Credit Advances,
 
together
 
with the
 
aggregate principal
 
amount of
 
all
 
Letter of
 
Credit Advances
 
and
 
Undrawn
Amounts does not exceed the aggregate amount of the Revolving Credit Commitments as then reduced.
(b)
In the
 
event that
 
the aggregate
 
principal amount
 
of all Revolving
 
Credit Advances,
 
together
with the
 
aggregate principal
 
amount of
 
the
 
Letter of
 
Credit Advances
 
and
 
Undrawn Amounts
 
at any
 
one
 
time
outstanding shall
 
at any
 
time exceed
 
the aggregate
 
amount of
 
the Revolving
 
Credit Commitments
 
of all
 
of the
Banks at such
 
time, Borrower shall immediately
 
repay so much of
 
the Revolving Credit Advances
 
as is necessary
in order
 
that the
 
aggregate principal
 
amount of
 
the Revolving
 
Credit Advances
 
thereafter outstanding,
 
together
with the aggregate principal
 
amount of the Letter
 
of Credit Advances and
 
Undrawn Amounts shall not
 
exceed the
aggregate amount of the Revolving Credit Commitments of all of the Banks at such time.
SECTION 2.12
General Provisions as to Payments.
 
(a)
Borrower shall make
 
each payment of principal
 
of, and interest
 
on, the Loans
 
and of fees
hereunder, not later
 
than 11:00 A.M.
 
(Winston-Salem, North Carolina
 
time) on the date when
 
due, in Federal or
other funds
 
immediately available
 
in Winston
 
-Salem, North
 
Carolina, to
 
the Agent
 
at its
 
address referred
 
to in
Section 9.01.
 
Subject to the terms of Section 2.02(d), the Agent will promptly distribute to each Bank its ratable
share of
 
each such
 
payment received
 
by the
 
Agent for the
 
account of
 
the Banks; provided
 
that payments
 
of interest
shall be distributed
 
by the Agent
 
within three Domestic
 
Business Days of
 
the date such
 
payment is received
 
by
the Agent for the account of the Banks.
(b)
Whenever any payment
 
of principal
 
of, or
 
interest on,
 
the Revolving Credit
 
Advances or
of fees shall be due on a day which is not a Domestic Business Day (including, without limitation, any payments
pursuant to Sections 2.02(c)
 
and 2.02(d)), the date
 
for payment thereof shall
 
be extended to the
 
next succeeding
Domestic Business Day.
 
If the date
 
for any payment
 
of principal is
 
extended by operation
 
of law or
 
otherwise,
interest thereon shall be payable for such extended time.
(c)
All payments of principal, interest and fees and all other amounts to
 
be made by Borrower
pursuant to
 
this Agreement
 
with respect
 
to any
 
Revolving Credit
 
Advance or
 
fee relating
 
thereto shall
 
be paid
without deduction for,
 
and free from,
 
any tax, imposts,
 
levies, duties, deductions,
 
or withholdings of
 
any nature
now or at anytime hereafter imposed by any governmental authority or by any taxing authority thereof or therein
excluding in the case
 
of each Bank,
 
taxes imposed on or measured
 
by its net income,
 
and franchise taxes imposed
on it, by the jurisdiction under the laws
 
of which such Bank is organized or any political subdivision thereof and,
in the case
 
of each Bank,
 
taxes imposed on
 
its income, and
 
franchise taxes imposed
 
on it, by
 
the jurisdiction of
such Bank’s applicable Lending
 
Office or any political
 
subdivision thereof (all
 
such non-excluded taxes,
 
imposts,
levies, duties, deductions
 
or withholdings
 
of any
 
nature being
 
“Taxes”).
 
In the event
 
that Borrower
 
is required
by
 
applicable
 
law
 
to
 
make
 
any
 
such
 
withholding
 
or
 
deduction
 
of
 
Taxes
 
with
 
respect
 
to
 
any
 
Revolving
 
Credit
Advance
 
or
 
fee
 
or
 
other
 
amount,
 
Borrower
 
shall
 
pay
 
such
 
deduction
 
or
 
withholding
 
to
 
the
 
applicable
 
taxing
authority,
 
shall
 
promptly
 
furnish
 
to
 
any
 
Bank
 
in
 
respect
 
of
 
which
 
such
 
deduction
 
or
 
withholding
 
is
 
made
 
all
 
 
 
 
 
 
 
receipts and other documents evidencing such
 
payment and shall pay to such Bank
 
additional amounts as may be
necessary in order that
 
the amount received
 
by such Bank
 
after the required
 
withholding or other payment
 
shall
equal the amount
 
such Bank would
 
have received had
 
no such withholding
 
or other payment
 
been made.
 
If no
withholding or
 
deduction of Taxes are
 
payable in respect
 
of any Revolving
 
Credit Advance or
 
fee relating thereto,
Borrower shall furnish any
 
Bank, at such Bank’s request, a certificate
 
from each applicable taxing authority
 
or an
opinion of counsel
 
reasonably acceptable to such
 
Bank, in either case
 
stating that such payments
 
are exempt from
or not subject to withholding
 
or deduction of Taxes
 
.
 
If Borrower fails to provide such
 
original or certified copy
of a receipt evidencing
 
payment of Taxes
 
or certificate(s) or opinion
 
of counsel of
 
exemption, Borrower hereby
agrees to
 
compensate such
 
Bank for,
 
and indemnify
 
them with
 
respect to,
 
the tax
 
consequences of
 
Borrower’s
failure to provide evidence of tax payments or tax exemption.
In the
 
event any
 
Bank receives
 
a refund
 
of any Taxes
 
paid by
 
Borrower pursuant
 
to this
 
Section
2.12, it will
 
pay to Borrower the
 
amount of such
 
refund promptly upon
 
receipt thereof; provided,
 
however, if
 
at
any time
 
thereafter it
 
is required
 
to return
 
such refund,
 
Borrower shall
 
promptly repay
 
to it
 
the amount
 
of such
refund.
Without prejudice
 
to the survival of
 
any other agreement of
 
Borrower hereunder,
 
the agreements
and obligations
 
of Borrower
 
contained in
 
this
 
Section 2.12
 
shall be
 
applicable with
 
respect to
 
any Participant,
Assignee or other Transferee,
 
and any calculations required by such provisions
 
(i) shall be made based upon the
circumstances of such
 
Participant, Assignee
 
or other Transferee,
 
and (ii)
 
constitute a
 
continuing agreement
 
and
shall survive the termination of this Agreement and the payment in full or cancellation of the Notes.
SECTION 2.13
Computation
 
of
 
Interest
 
and
 
Fees.
 
Interest
 
on
 
the
 
Revolving
 
Credit
Advances shall
 
be computed
 
on the
 
basis of
 
a year
 
of 360
 
days and
 
paid for
 
the actual
 
number of
 
days elapsed
(including the first
 
day but
 
excluding the last
 
day).
 
Non-utilization fees, letter
 
of credit fees
 
and any other
 
fees
payable hereunder shall
 
be computed on
 
the basis
 
of a year
 
of 360
 
days and paid
 
for the actual
 
number of days
elapsed (including the first day but excluding the last day).
SECTION 2.14
Intentionally Omitted.
 
SECTION 2.15
Intentionally Omitted.
 
SECTION 2.16
Intentionally Omitted.
 
SECTION 2.17
Increase in Commitments.
 
(a)
Borrower shall have the right, at any time and from time to time after the Closing Date by
written
 
notice
 
to
 
and
 
in consultation
 
with
 
the
 
Agent, to
 
request an
 
increase
 
in
 
the
 
aggregate Revolving
 
Credit
Commitment (each such
 
requested increase, a
 
“Commitment Increase”),
 
by having
 
one or
 
more existing
 
Banks
increase their respective
 
Revolving Credit Commitments
 
then in effect
 
(each, an “Increasing
 
Bank”), by adding
as a Bank with
 
a new Revolving Credit
 
Commitment hereunder one or
 
more Persons that are
 
not already Banks
(each,
 
an
 
“Additional
 
Bank”),
 
or
 
a
 
combination
 
thereof
 
provided
 
that
 
(i)
 
any
 
such
 
request
 
for
 
a
 
Commitment
Increase shall
 
be in
 
a minimum
 
amount of
 
$5,000,000, (ii)
 
immediately after
 
giving effect
 
to any
 
Commitment
Increase, (y) the aggregate
 
Revolving Credit Commitments shall
 
not exceed $75,000,000 and
 
(z) the aggregate
 
of
all
 
Commitment
 
Increases
 
effected
 
shall
 
not
 
exceed
 
$40,000,000,
 
(iii)
 
no
 
Default
 
shall
 
have
 
occurred
 
and
 
be
continuing
 
on
 
the
 
applicable
 
Commitment
 
Increase
 
Date
 
(as
 
hereinafter
 
defined)
 
or
 
shall
 
result
 
from
 
any
Commitment Increase,
 
(iv) immediately
 
after giving
 
effect to
 
any Commitment
 
Increase (including
 
any Revolving
Credit
 
Borrowings
 
in
 
connection
 
therewith
 
and
 
the
 
application
 
of
 
the
 
proceeds
 
thereof),
 
Borrower
 
shall
 
be
 
in
compliance with
 
the covenants
 
contained in
 
Article V,
 
(v) subject
 
to the
 
terms of
 
(vi), Borrower
 
may invite
 
an
Additional Bank
 
to provide
 
a Commitment
 
Increase subject
 
to the
 
Agent’s
 
consent to
 
such Additional
 
Bank in
writing which
 
consent may
 
not be
 
unreasonably withheld;
 
and (vi)
 
Borrower shall
 
give the
 
existing Banks
 
the
right of
 
first refusal
 
for participating
 
in any
 
such Commitment
 
Increase by
 
providing such
 
notice to
 
the Agent
fifteen (15)
 
Domestic Business
 
Days before
 
making a
 
request to
 
any Person
 
that is
 
not already
 
a Bank.
 
An existing
Bank shall
 
have priority
 
over
 
Additional
 
Banks to
 
participate in
 
such
 
requested
 
Commitment
 
Increase if
 
such
existing Bank provides written notice of its election to participate within fifteen (15) Domestic Business Days of
such existing
 
Bank’s
 
receipt of
 
such notice.
 
Such notice
 
from Borrower
 
shall specify
 
the requested
 
amount of
the Commitment Increase.
 
No Bank shall have any obligation to become an
 
Increasing Bank.
 
Any fees paid by
Borrower for a Commitment Increase to
 
an Increasing Bank, an Additional Bank,
 
or the Agent shall be
 
for their
own account and shall
 
be in an
 
amount, if any,
 
mutually agreed upon
 
by each such
 
party and Borrower,
 
in each
party’s sole discretion.
(b)
Borrower,
 
the
 
other
 
Loan
 
Parties
 
and
 
each
 
Additional
 
Bank
 
shall
 
execute
 
a
 
joinder
agreement, and Borrower, the other
 
Loan Parties and
 
each Bank shall execute
 
all such other
 
documentation as the
Agent and Borrower may reasonably require,
 
all in form and substance
 
reasonably satisfactory to the Agent
 
and
Borrower,
 
to evidence the Revolving Credit Commitment adjustments referred to in Section 2.17.
(c)
If
 
the
 
aggregate
 
Revolving
 
Credit
 
Commitments
 
are
 
increased
 
in
 
accordance
 
with
 
this
Section 2.17, Borrower
 
(in consultation with
 
the Agent), Increasing
 
Bank(s) (if any)
 
and Additional Bank(s)
 
(if
any) shall agree upon
 
the effective date
 
(the “Commitment
 
Increase Date,” which shall
 
be a Domestic
 
Business
Day not less than thirty (30)
 
days prior to the Termination
 
Date).
 
The Agent shall promptly notify the
 
Banks of
such increase and
 
the Commitment
 
Increase Date.
 
Each of Borrower,
 
the Guarantors, the
 
Banks and the
 
Agent
acknowledges and agrees that
 
each Commitment Increase meeting
 
the conditions set forth
 
in this Section 2.17
 
(x)
shall not require the
 
consent of any Guarantor
 
or any Bank other than
 
the Increasing Banks and Additional
 
Banks
who
 
have agreed
 
to
 
make
 
such
 
Commitment
 
Increase and
 
shall
 
not
 
constitute an
 
amendment,
 
modification
 
or
waiver subject to Section 9.05 or Section 9.07 and (y) subject
 
to clause (d) of this Section 2.17, shall be effective
as of the Commitment Increase Date.
 
(d)
Notwithstanding anything set forth in this Section 2.17 to the contrary, Borrower shall not
incur any Revolving Credit Advances
 
pursuant to any Commitment Increase (and no Commitment Increase shall
be effective) unless
 
the conditions
 
set forth in
 
Section 2.17(a) as
 
well as the
 
following conditions precedent
 
are
satisfied on the applicable Commitment Increase Date:
(i)
The Agent shall have received the following, each dated
 
the Commitment Increase
Date and in form and substance reasonably satisfactory to the Agent:
(A)
 
a supplement
 
to this
 
Agreement signed
 
by each Increasing
 
Bank (if
 
any) and
Additional Bank (if
 
any), setting forth the
 
reallocation of Revolving
 
Credit Commitments
 
referred to in Section
2.17(e), all other documentation required by the Agent pursuant to Section 2.17(b) and such other modifications,
documents or items as the Agent, such Banks or their counsel may reasonably request;
(B)
 
an
 
instrument,
 
duly
 
executed
 
by
 
Borrower
 
and
 
each
 
Guarantor,
 
if
 
any,
acknowledging and reaffirming
 
its obligations under
 
this Agreement and the
 
other Loan Documents
 
to which it
is a party;
(C)
 
a certificate of the secretary or
 
an assistant secretary of Borrower and
 
each
Guarantor,
 
certifying
 
to
 
and
 
attaching
 
the
 
resolutions
 
adopted
 
by
 
the
 
board
 
of
 
directors
 
(or
 
similar
 
governing
body) of such party approving or consenting to such Commitment Increase;
(D)
 
a certificate of the chief financial officer of Borrower, certifying
 
that (x) as
of the Commitment
 
Increase Date, all representations
 
and warranties of
 
Borrower and the Guarantors
 
contained
in this
 
Agreement and
 
the other Loan
 
Documents are true
 
and correct (except
 
to the extent
 
any such
 
representation
or
 
warranty
 
is
 
expressly
 
stated
 
to
 
have
 
been
 
made
 
as
 
of
 
a
 
specific
 
date,
 
in
 
which
 
case
 
such
 
representation
 
or
warranty is true
 
and correct as of
 
such date), except that
 
for purposes of
 
this Section 2.17(d)(i) the
 
representations
and
 
warranties
 
contained
 
in
 
Section
 
4.10(a)
 
shall
 
be
 
deemed
 
to
 
refer
 
to
 
the
 
most
 
recent
 
statements
 
furnished
 
pursuant
 
to
 
clauses
 
(a)
 
and
 
(b),
 
respectively,
 
of
 
Section
 
5.01,
 
(y)
 
immediately
 
after
 
giving
 
effect
 
to
 
such
Commitment Increase (including
 
any Revolving Credit
 
Borrowings in connection
 
therewith and the
 
application
of the proceeds thereof), Borrower is in compliance with
 
the covenants contained in
 
Article V, and (z) no Default
has occurred
 
and is
 
continuing, both
 
immediately before
 
and after
 
giving
 
effect to
 
such Commitment
 
Increase
(including any Revolving
 
Credit Borrowings in
 
connection therewith and
 
the application of
 
the proceeds thereof);
(E)
 
an
 
opinion
 
or
 
opinions
 
of
 
counsel
 
for
 
Borrower
 
and
 
the
 
Guarantors,
 
in
 
a
form reasonably satisfactory to Agent and covering
 
such matters as Agent may reasonably
 
request, addressed to
the Agent
 
and the Banks,
 
together with such
 
other documents, instruments
 
and certificates as
 
the Agent
 
shall have
reasonably requested; and
(F)
 
such other documents
 
or items that
 
the Agent, such Banks or
 
their counsel
may reasonably request.
(e)
On the Commitment
 
Increase Date, (i)
 
the aggregate
 
principal outstanding
 
amount of the
Revolving
 
Credit
 
Advances
 
(the
 
“Initial
 
Advances”)
 
immediately
 
prior
 
to
 
giving
 
effect
 
to
 
the
 
Commitment
Increase
 
shall
 
be
 
deemed
 
to
 
be
 
repaid,
 
(ii)
 
immediately
 
after
 
the
 
effectiveness
 
of
 
the
 
Commitment
 
Increase,
Borrower shall be
 
deemed to have
 
made new Revolving
 
Credit Borrowings
 
of Revolving Credit
 
Advances (the
“Subsequent Borrowings”) in
 
an aggregate principal
 
amount equal to
 
the aggregate
 
principal amount of
 
the Initial
Advances and of the types and for the Interest Periods specified in a Notice of Borrowing delivered to the Agent
in
 
accordance
 
with
 
Section
 
2.02(a),
 
(iii)
 
each
 
Bank
 
shall
 
pay
 
to
 
the
 
Agent
 
in
 
immediately
 
available
 
funds
 
an
amount equal to
 
the difference, if positive,
 
between (y) such Bank’s
 
pro rata percentage (calculated
 
after giving
effect
 
to
 
the
 
Commitment
 
Increase)
 
of
 
the
 
Subsequent
 
Borrowings
 
and
 
(z)
 
such
 
Bank’s
 
pro
 
rata
 
percentage
(calculated
 
without
 
giving
 
effect
 
to
 
the
 
Commitment
 
Increase)
 
of
 
the
 
Initial
 
Advances,
 
(iv)
 
after
 
the
 
Agent
receives the funds
 
specified in clause
 
(iii) above, the
 
Agent shall pay
 
to each Bank
 
the portion of
 
such funds equal
to the difference, if positive, between (y) such Bank’s pro rata percentage (calculated without giving
 
effect to the
Commitment Increase)
 
of the
 
Initial Advances
 
and (z)
 
such Bank’s
 
pro rata
 
percentage (calculated
 
after giving
effect to the Commitment
 
Increase) of the amount of
 
the Subsequent Borrowings, (v)
 
the Bank shall be
 
deemed
to hold
 
the Subsequent
 
Borrowings ratably in
 
accordance with
 
their respective
 
Revolving Credit
 
Commitments
(calculated after
 
giving effect
 
to the
 
Commitment Increase),
 
(vi) Borrower
 
shall pay
 
all accrued
 
but unpaid
 
interest
on the
 
Initial Advances
 
to the
 
Banks entitled
 
thereto, and
 
(vii) the
 
signature pages
 
hereto shall
 
be deemed
 
amended
to reflect the Revolving Credit Commitments of all Banks after giving effect to the Commitment Increase.
 
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01
Conditions to First Borrowing.
 
This Agreement shall become effective
 
on
the
 
date
 
(the
 
“Closing
 
Date”)
 
that
 
each
 
of
 
the
 
following
 
conditions
 
shall
 
have
 
been
 
satisfied
 
(or
 
waived
 
in
accordance with Section 9.05):
(a)
receipt by the Agent from each of the
 
parties hereto of a duly executed counterpart of
 
this
Agreement signed by such party;
(b)
receipt by the Agent
 
of duly executed Notes
 
for the account of
 
each lender complying with
the provisions of Section 2.04;
(c)
receipt by
 
the
 
Agent
 
of
 
an
 
opinion
 
of
 
Xxxxxxxx, Xxxxxxxx
 
& Xxxxxx,
 
P.A.,
 
counsel
 
for
Borrower
 
and
 
Guarantors,
 
dated
 
as
 
of
 
the
 
Closing
 
Date,
 
covering
 
such
 
matters
 
relating
 
to
 
the
 
transactions
contemplated hereby as the Agent or any Bank may reasonably request;
 
(d)
receipt
 
by
 
the
 
Agent
 
of
 
a
 
certificate
 
(the
 
“Closing
 
Certificate”),
 
dated
 
the
 
date
 
of
 
the
Closing Date,
 
substantially in
 
the form
 
of Exhibit
 
D hereto,
 
signed by
 
a principal
 
financial officer
 
of the
 
Borrower,
to
 
the
 
effect
 
that
 
(i)
 
no
 
Default
 
has
 
occurred
 
and
 
is
 
continuing
 
on
 
the
 
date
 
of
 
the
 
Closing
 
Date
 
and
 
(ii)
 
the
representations and
 
warranties of
 
the Loan
 
Parties contained
 
in Article
 
IV are
 
true on
 
and as
 
of the
 
date of
 
the
Closing Date;
(e)
receipt by
 
the Agent
 
of all
 
documents which
 
the Agent
 
or any
 
Bank may
 
reasonably request
relating to the
 
existence of each
 
Loan Party,
 
the authority for
 
and the validity
 
of this
 
Agreement, the Notes
 
and
the other
 
Loan Documents,
 
and any
 
other matters
 
relevant hereto,
 
all in
 
form and
 
substance satisfactory
 
to the
Agent, including without limitation a
 
certificate of incumbency of each Loan
 
Party (the “Officer’s
 
Certificate”),
signed by the
 
Secretary or an
 
Assistant Secretary of
 
the respective Loan
 
Party, substantially in the form
 
of Exhibit
E hereto,
 
certifying as
 
to the
 
names, true
 
signatures and
 
incumbency of
 
the officer
 
or officers
 
of the
 
respective
Loan Party,
 
authorized to execute
 
and deliver the
 
Loan Documents, and
 
certified copies of
 
the following items:
(i) the Loan
 
Party’s certificate of incorporation
 
or articles of
 
organization, as the
 
case may
 
be, (ii) the
 
Loan Party’s
bylaws or operating
 
agreement, as the
 
case may be,
 
(iii) a certificate
 
of the Secretary
 
of State of
 
such Loan Party’s
State
 
of
 
organization
 
as
 
to
 
the
 
good
 
standing
 
of
 
such
 
Loan
 
Party,
 
and
 
(iv)
 
the
 
action
 
taken
 
by
 
the
 
Board
 
of
Directors of the Loan Party authorizing
 
the Loan Party’s execution, delivery and performance of this Agreement,
the Notes and the other Loan Documents to which the Loan Party is a party;
(f)
evidence satisfactory to the Agent that the
 
Previous Loan Agreement has been terminated
and all indebtedness, liabilities and obligations thereunder have been paid in full;
(g)
Borrower
 
shall
 
deliver
 
to
 
the
 
Agent,
 
and
 
directly
 
to
 
any
 
Bank
 
requesting
 
the
 
same,
 
a
Beneficial Ownership Certification in relation to it (or a certification that
 
such Borrower qualifies for an express
exclusion from the “legal entity customer” definition under
 
the Beneficial Ownership Regulations), in each case
at least five (5) Domestic Business Days prior to the Closing Date; and
(h)
such other
 
documents or
 
items as
 
the Agent,
 
the Banks
 
or their
 
counsel
 
may reasonably
request.
The Agent shall
 
promptly notify Borrower
 
and the Banks
 
of the Closing
 
Date, and such
 
notice shall be
 
conclusive
and binding on all parties hereto.
SECTION 3.02
Conditions
 
to
 
All
 
Borrowings.
 
The
 
obligation
 
of
 
each
 
Bank
 
to
 
make
 
a
Revolving Credit Advance
 
on the occasion
 
of each Revolving
 
Credit Borrowing is
 
subject to the
 
satisfaction of
the following conditions:
(a)
receipt by the Agent of a Notice of Borrowing as required by Section 2.02;
(b)
the fact
 
that, immediately
 
before and
 
after such
 
Revolving Credit
 
Borrowing, no
 
Default
shall have occurred and be continuing;
(c)
the fact that the representations and warranties of the Loan Parties contained in Article IV
of this Agreement shall be true, on and as of the date of such Revolving Credit Borrowing; and
(d)
the
 
fact
 
that,
 
immediately
 
after
 
such
 
Revolving
 
Credit
 
Borrowing
 
(i)
 
the
 
aggregate
outstanding principal amount
 
of the
 
Revolving Credit Advances
 
of each Bank
 
together with
 
such Bank’s Pro Rata
Share of the
 
aggregate outstanding principal
 
amount of all
 
Letter of Credit
 
Advances and Undrawn
 
Amounts, will
not exceed the amount of
 
its Revolving Credit Commitment and
 
(ii) the aggregate outstanding principal amount
of the
 
Revolving Credit Advances
 
together with the
 
aggregate outstanding principal
 
amount of all
 
Letter of
 
Credit
Advances and Undrawn
 
Amounts, will not
 
exceed the aggregate amount
 
of the Revolving Credit
 
Commitments
of all of the Banks as of such date.
 
 
 
Each Revolving Credit Borrowing hereunder shall be deemed to be a representation and warranty
by the
 
Loan
 
Parties
 
on
 
the
 
date
 
of
 
such
 
Revolving
 
Credit
 
Borrowing
 
as
 
to
 
the
 
truth
 
and
 
accuracy of
 
the
 
facts
specified
 
in
 
clauses
 
(b),
 
(c)
 
and
 
(d)
 
of
 
this
 
Section;
 
provided
 
that
 
a
 
Revolving
 
Credit
 
Borrowing
 
shall
 
not
 
be
deemed
 
a
 
representation
 
or
 
warranty
 
as
 
to
 
the
 
facts
 
specified
 
in
 
clause
 
(c)
 
of
 
this
 
Section
 
if
 
the
 
aggregate
outstanding
 
principal
 
amount
 
of
 
the
 
Revolving
 
Credit
 
Advances
 
immediately
 
after
 
such
 
Revolving
 
Credit
Borrowing
 
will
 
not
 
exceed
 
the
 
aggregate
 
outstanding
 
principal
 
amount
 
of
 
Revolving
 
Credit
 
Advances
immediately before such Revolving Credit Borrowing.
SECTION 3.03
Conditions
 
to
 
Issuance of
 
Letters
 
of
 
Credit.
 
The
 
issuance
 
by the
 
Issuing
Bank of
 
each Letter
 
of Credit
 
shall be
 
subject to
 
satisfaction of
 
the conditions
 
set forth
 
in the
 
related Letter
 
of
Credit Agreement and satisfaction of the following conditions:
(a)
the fact that, immediately before
 
and after the issuance
 
of such Letter of Credit,
 
no Default
shall have occurred and be continuing;
(b)
the fact that the representations and warranties of the Loan Parties contained in Article IV
of this Agreement shall be true, on and as of the date of issuance of such Letter of Credit;
(c)
the fact that, immediately after the issuance of such Letter of Credit: (i)
 
the sum of (A) the
entire outstanding
 
principal amount
 
of the
 
Revolving Credit
 
Advances, (B)
 
the aggregate
 
outstanding principal
amount of the
 
Letter of Credit Advances,
 
and (C) the
 
aggregate Undrawn Amounts, will
 
not exceed the
 
aggregate
amount of the Revolving Credit Commitments of all of the Banks at such time; and
(d)
no Letter of Credit
 
shall have an expiry
 
date or termination
 
date on or after
 
the earlier of:
(1) the
 
date twelve
 
months after
 
the date
 
of the
 
issuance of
 
such Letter
 
of Credit;
 
or (2)
 
the date
 
two Domestic
Business Days prior to the Termination Date.
ARTICLE IV
REPRESENTATIONS
 
AND WARRANTIES
The Loan Parties represent and warrant that:
SECTION 4.01
Corporate Organization
 
and Power.
 
Each Loan
 
Party (i)
 
is a
 
corporation,
limited
 
partnership
 
or
 
limited
 
liability
 
company
 
duly
 
organized,
 
formed
 
or
 
registered,
 
as
 
applicable,
 
validly
existing and
 
in good
 
standing under
 
the laws
 
of its
 
jurisdiction of
 
incorporation or
 
organization, as
 
applicable,
and (ii)
 
is qualified
 
to do
 
business and
 
is in
 
good standing
 
in every
 
other jurisdiction
 
in which
 
the nature
 
of its
business or the
 
ownership of its
 
properties requires it
 
to be so
 
qualified and where
 
failure to so
 
qualify would have
a Material
 
Adverse Effect.
 
Each Loan
 
Party has
 
the requisite
 
power and
 
authority and
 
the right
 
to own
 
and operate
its properties, to lease the property it operates under lease, and to conduct its business as now and proposed
 
to be
conducted.
SECTION 4.02
Litigation; Government Regulation.
 
There is no action,
 
suit or proceeding
pending, or to the knowledge of the Loan Parties threatened, against
 
or affecting the Loan Parties or any of their
respective Subsidiaries before
 
any court or
 
arbitrator or any
 
governmental body,
 
agency or official
 
which could
have a Material
 
Adverse Effect
 
or which in
 
any manner draws
 
into question the
 
validity or enforceability
 
of, or
could impair
 
the
 
ability
 
of the
 
Loan Parties
 
to perform
 
their
 
respective
 
obligations
 
under,
 
this
 
Agreement, the
Notes or any
 
of the other
 
Loan Documents.
 
No Loan Party
 
is in violation
 
of or in
 
default under any
 
applicable
statute, rule, order,
 
decree, writ, injunction
 
or regulation of any
 
governmental body (including any
 
court) where
such violation would have a Material Adverse Effect.
 
 
 
 
SECTION 4.03
Taxes.
 
There
 
have
 
been
 
filed
 
on
 
behalf
 
of
 
the
 
Loan
 
Parties
 
and
 
their
respective Subsidiaries all Federal, state and local income, excise, sales, property and other tax returns
 
which are
required to
 
be
 
filed
 
by
 
them
 
and
 
all
 
taxes
 
due
 
pursuant
 
to
 
such
 
returns
 
or
 
pursuant
 
to
 
any
 
levy
 
or
 
assessment
received
 
by
 
or
 
on
 
behalf
 
of
 
the
 
Loan
 
Parties
 
or
 
any
 
Subsidiary
 
have
 
been
 
paid,
 
unless
 
such
 
taxes
 
are
 
being
diligently contested by such Loan Party by appropriate
 
proceedings, such Loan Party has established
 
reserves in
accordance with
 
GAAP and
 
the failure
 
to timely
 
pay such
 
taxes will
 
not have
 
a Material
 
Adverse Effect.
 
The
charges,
 
accruals and
 
reserves
 
on the
 
books of
 
the
 
Loan Parties
 
and their
 
respective Subsidiaries
 
in
 
respect of
taxes or other governmental charges are, in the opinion of the Loan Parties, adequate.
 
To the knowledge of each
Loan Party,
 
no material
 
controversy in respect
 
of any taxes
 
is pending or
 
threatened.
 
United States
 
income tax
returns
 
of
 
the
 
Loan
 
Parties
 
and
 
their
 
respective
 
Subsidiaries
 
have
 
been
 
closed
 
through
 
the
 
Fiscal
 
Year
 
ended
January 30, 2022.
SECTION 4.04
Enforceability
 
of
 
Loan
 
Documents:
 
Compliance
 
With
 
Other
 
Instruments.
 
The execution,
 
delivery and
 
performance by
 
each Loan
 
Party of
 
this Agreement,
 
the Notes
 
and the
 
other Loan
Documents to which
 
it is a
 
party (i) are
 
within the corporate,
 
partnership and limited
 
liability powers
 
of each Loan
Party,
 
as applicable,
 
and (ii)
 
have been
 
duly authorized
 
by all
 
necessary and
 
appropriate corporate,
 
partnership
and
 
limited
 
liability
 
action,
 
as
 
applicable,
 
and
 
have
 
been
 
validly
 
executed
 
and
 
delivered.
 
Each
 
of
 
the
 
Loan
Documents executed
 
by each Loan
 
Party is
 
the legal, valid
 
and binding
 
obligation of
 
such Loan
 
Party, enforceable
against
 
such
 
Loan
 
Party
 
in
 
accordance
 
with
 
its
 
terms
 
except
 
as
 
enforceability
 
may
 
be
 
limited
 
by
 
bankruptcy,
insolvency,
 
reorganization,
 
moratorium or
 
other similar
 
laws affecting
 
creditors’ rights
 
generally or
 
by general
equitable principles.
 
No Loan Party or
 
any Subsidiary of a
 
Loan Party is in default
 
in any material respect
 
with
respect to any indenture, loan agreement, mortgage, lease, deed or similar
 
agreement related to the borrowing of
monies to
 
which such
 
Loan Party
 
is a
 
party or
 
by which
 
it is
 
bound.
 
Neither the
 
execution, delivery
 
or performance
of the Loan
 
Documents executed by
 
the Loan Parties, nor
 
compliance therewith: (a) conflicts
 
or will conflict with
or results or will result in any breach of, or constitutes or will constitute with the passage of time or the giving of
notice
 
or
 
both,
 
a
 
default
 
under,
 
(i)
 
the
 
certificate
 
of
 
incorporation,
 
certificate
 
of
 
partnership,
 
articles
 
of
organization, certificate
 
of formation, bylaws,
 
partnership agreement, operating
 
agreement or any
 
other organic
documents of any Loan Party or any Subsidiary of a Loan Party,
 
(ii) any law, order,
 
writ, injunction or decree of
any
 
court
 
or
 
governmental
 
authority,
 
or
 
(iii)
 
any
 
agreement
 
or
 
instrument
 
to
 
which
 
any
 
Loan
 
Party
 
or
 
any
Subsidiary
 
of
 
a
 
Loan
 
Party
 
is
 
a
 
party
 
or
 
by
 
which
 
any
 
Loan
 
Party
 
or
 
any
 
Subsidiary
 
of
 
a
 
Loan
 
Party,
 
or
 
its
respective
 
properties,
 
is
 
bound
 
or
 
(b)
 
results
 
or
 
will
 
result
 
in
 
the
 
creation
 
or
 
imposition
 
of
 
any
 
Lien
 
upon
 
the
properties or assets of any Loan Party or any Subsidiary of a Loan Party, except Permitted Liens.
SECTION 4.05
Governmental Authorization.
 
No authorization, consent or approval
 
of, or
declaration
 
or
 
filing
 
with,
 
any
 
governmental
 
authority
 
is
 
required
 
for
 
the
 
valid
 
execution,
 
delivery
 
and
performance
 
by
 
each
 
Loan
 
Party
 
of
 
the
 
Loan
 
Documents
 
or
 
the
 
consummation
 
by
 
each
 
Loan
 
Party
 
of
 
the
transactions contemplated hereby
 
and thereby.
 
Each Loan Party
 
has, and
 
is in material
 
good standing
 
with respect
to, all
 
governmental approvals,
 
permits, certificates,
 
licenses, inspections,
 
consents and
 
franchises necessary
 
to
continue to
 
conduct its
 
respective businesses
 
as heretofore
 
conducted and
 
to own
 
or lease
 
and operate
 
its properties
as now owned or leased by it, except for
 
those the failure to obtain which (or maintain good standing
 
with regard
to) would not individually or in the aggregate have a Material Adverse Effect.
 
None of such approvals, permits,
certificates,
 
consents,
 
or
 
franchises
 
contains
 
any
 
term,
 
provision,
 
condition
 
or
 
limitation
 
materially
 
more
burdensome than
 
such
 
as
 
are generally
 
applicable
 
to
 
Persons
 
engaged in
 
the
 
same
 
or
 
similar
 
business as
 
such
Loan Party.
SECTION 4.06
No Default.
(a)
No Loan Party
 
nor any of
 
their respective Subsidiaries
 
is in
 
default under or
 
with respect
to any agreement, instrument
 
or undertaking to which
 
it is a
 
party or by which
 
it or any of
 
its property is bound
that would reasonably be expected to result in a Material Adverse Effect.
 
 
 
(b)
No Default or Event of Default has occurred and is continuing.
SECTION 4.07
Margin Securities.
 
No Loan Party
 
nor any of
 
their respective Subsidiaries
is engaged principally, or
 
as one of its important activities, in the business of purchasing or carrying
 
any Margin
Stock.
 
No part of
 
the proceeds of
 
any Revolving Credit
 
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, or be used for any
purpose in
 
each case
 
which violates,
 
or which
 
is inconsistent
 
with, the
 
provisions of
 
Regulation T, U
 
or X.
 
Neither
the making
 
of any
 
Revolving Credit
 
Advance hereunder,
 
nor the
 
use of
 
the proceeds
 
thereof, will
 
violate or
 
be
inconsistent with the provisions of Regulation T, U or X of the FRB.
SECTION 4.08
Full
 
Disclosure.
 
None
 
of
 
the
 
Loan
 
Documents,
 
nor
 
any
 
statements
 
or
information furnished to Agent
 
or any Bank by
 
or on behalf of
 
a Loan Party for
 
purposes of or in
 
connection with
this
 
Agreement
 
or
 
any
 
transaction
 
contemplated
 
by
 
the
 
Loan
 
Documents,
 
contains
 
any
 
untrue
 
statement
 
of
 
a
material fact or omits a material
 
fact necessary to make the statements contained
 
therein or herein not misleading
and all
 
such
 
statements
 
and information
 
are true,
 
accurate and
 
complete in
 
every material
 
respect
 
or based
 
on
reasonable estimates
 
on the
 
date as
 
of which
 
such information
 
is stated
 
or certified.
 
There is
 
no fact
 
known to
any Loan
 
Party not
 
disclosed to
 
the Banks
 
in writing
 
that has
 
or,
 
to the
 
best of
 
such Loan
 
Party’s
 
knowledge,
would have a Material Adverse Effect.
 
As of the Closing Date, all of
 
the information included in the Beneficial
Ownership Certification is true and correct.
SECTION 4.09
ERISA.
(a)
No accumulated funding deficiency (as defined in Section 302 of
 
ERISA and Section 412
of the
 
Code), whether
 
or not
 
waived, has
 
occurred with
 
respect to
 
any Plan,
 
and no
 
termination event
 
or Reportable
Event has occurred or is reasonably expected to occur with respect to any Plan.
 
The present value of all accrued
benefits
 
under
 
each
 
Plan
 
(based
 
on
 
those
 
assumptions
 
used
 
to
 
fund
 
such
 
Plan)
 
did
 
not,
 
as
 
of
 
the
 
most
 
recent
valuation date, exceed the then
 
current value of the assets
 
of such Plan allocable to
 
such benefits.
 
Full payment
has been
 
made on
 
or before
 
the due
 
date thereof
 
of all amounts
 
that each Loan
 
Party and
 
member of
 
the Controlled
Group is required under the terms of each Plan to have paid as contributions to such Plan.
(b)
No
 
Loan
 
Party
 
or
 
any
 
member
 
of
 
the
 
Controlled
 
Group
 
has
 
incurred
 
any
 
withdrawal
liability under Section 4201 of ERISA.
(c)
No Loan Party or any
 
member of the Controlled
 
Group has participated in
 
any prohibited
transaction
 
(as
 
defined
 
in
 
Section
 
406
 
of
 
ERISA
 
or
 
Section
 
4975
 
of
 
the
 
Code),
 
which
 
has
 
subjected,
 
or
 
may
subject, it to any material civil penalty
 
or tax imposed by Section 502(i) of
 
ERISA or Section 4975 of the Code,
respectively.
 
No Loan
 
Party has
 
incurred, or
 
is reasonably
 
expected to
 
incur,
 
any liability
 
to the
 
PBGC (other
than for insurance premiums which have been paid when due).
(d)
To
 
the
 
knowledge
 
of
 
each
 
Loan
 
Party
 
and
 
based
 
on
 
actuarial
 
reports,
 
the
 
present
 
value
(determined using actuarial and other assumptions that are reasonable in respect of the benefits provided and the
employees participating)
 
of the
 
liability of
 
each Loan
 
Party and
 
any member
 
of the
 
Controlled Group
 
for post-
retirement benefits to be provided to its current and former employees
 
under all welfare benefit plans (as defined
in Section
 
3(1) of
 
ERISA) does
 
not, in
 
the aggregate,
 
exceed the
 
assets under
 
all such
 
plans
 
allocable to
 
such
benefits by an amount that would have a Material Adverse Effect.
(e)
The execution
 
and
 
delivery
 
of
 
this
 
Agreement
 
will
 
not involve
 
any transaction
 
which
 
is
subject to the prohibitions of
 
Section 406 of ERISA or
 
in connection with which a
 
tax could be imposed pursuant
to Section 4975 of the Code.
(f)
Neither the
 
Loan Parties
 
nor any
 
member of
 
the Controlled
 
Group is
 
making or
 
has ever
made or been required to make any contributions to a Multiemployer Plan.
 
 
 
 
SECTION 4.10
Financial Statements.
(a)
The consolidated
 
balance sheet
 
of Borrower
 
and its
 
Consolidated Subsidiaries
 
as of
 
January
29, 2022
 
and the
 
related consolidated
 
statements of
 
income, shareholders’
 
equity and
 
cash flows
 
for the
 
Fiscal
Year
 
then ended, reported
 
on by PricewaterhouseCoopers
 
LLP,
 
copies of
 
which have been
 
delivered to each
 
of
the Banks, fairly
 
present in all
 
material respects, in
 
conformity with GAAP
 
(except as otherwise noted
 
therein),
and the consolidated
 
financial position of
 
Borrower and its
 
Consolidated Subsidiaries as
 
of such dates
 
and their
consolidated results of operations and cash flows for such periods stated.
(b)
Since
 
January
 
29,
 
2022,
 
there
 
has
 
been
 
no
 
event,
 
act,
 
condition
 
or
 
occurrence
 
having
 
a
Material Adverse Effect.
SECTION 4.11
Title to
 
Assets.
 
Each of the
 
Loan Parties and
 
their respective Subsidiaries
has
 
good,
 
indefeasible
 
and
 
merchantable
 
title
 
in
 
fee
 
simple
 
(or
 
its
 
equivalent
 
under
 
applicable
 
law)
 
to
 
and
ownership of
 
the Properties
 
owned by
 
it
 
(as reflected
 
in the
 
Financial Statements)
 
and all
 
of its
 
other material
assets, including without limitation, the assets reflected in the most recent Financial
 
Statements, free and clear of
all
 
Liens,
 
except
 
Permitted
 
Liens,
 
and
 
except
 
for
 
financing
 
statements
 
filed
 
in
 
connection
 
with
 
the
 
Permitted
Liens, no financing statement under
 
the Uniform Commercial Code that
 
names any Loan Party or
 
any Subsidiary
of a Loan Party as
 
debtor has been filed and is
 
still in effect, and no Loan
 
Party or any Subsidiary of a Loan
 
Party
has signed any
 
financing statement or
 
any security agreement
 
authorizing any secured
 
party thereunder to
 
file any
such financing statement.
 
Each Loan Party enjoys
 
peaceful and undisturbed possession
 
under all of its
 
material
leases and all such leases are valid and subsisting and in full force and effect.
 
Each of the Loan Parties and their
respective Subsidiaries has title to its properties sufficient for the conduct of its business.
SECTION 4.12
Use of
 
Proceeds.
 
Borrower’s uses of
 
the proceeds of
 
each Revolving Credit
Advance made by Banks
 
to Borrower pursuant to
 
this Agreement are, and
 
continue to be,
 
legal and proper uses
and such uses are and will be consistent with the terms of Section 5.15 and all applicable laws and statutes,
 
as in
effect from time to time.
SECTION 4.13
Environmental
 
Matters.
 
Except
 
as
 
would
 
not
 
individually
 
or
 
in
 
the
aggregate have a Material Adverse Effect:
 
(a)
No Hazardous Materials have been or are being used, produced, manufactured, processed,
treated, recycled, generated, stored,
 
disposed of, managed or
 
otherwise handled at, or shipped
 
or transported to or
from or located on any Property
 
(except in compliance with applicable Environmental
 
Laws) and no part of any
Property,
 
including the groundwater
 
located thereon and
 
thereunder, is
 
presently known by
 
such Loan Party
 
or
any
 
Subsidiary
 
of
 
a
 
Loan
 
Party
 
to
 
have
 
concentrations
 
of
 
any
 
Hazardous
 
Materials
 
in
 
violation
 
of
 
applicable
Environmental Laws.
 
To
 
the knowledge of each
 
Loan Party,
 
no improvement located on
 
any Property contains
any
 
friable
 
asbestos
 
or
 
asbestos-containing
 
materials
 
in
 
material
 
violation
 
of
 
any
 
federal,
 
state
 
or
 
local
 
laws,
regulations or orders respecting such asbestos or asbestos-containing materials.
 
To the
 
knowledge of each Loan
Party, there
 
were no Environmental Releases of
 
Hazardous Materials in violation
 
of Environmental Law on any
Property previously owned by such
 
Loan Party or any Subsidiary
 
of a Loan Party
 
while such Loan Party or
 
any
Subsidiary of a Loan Party owned such Property;
(b)
No Property
 
has, to
 
the knowledge
 
of any
 
Loan Party
 
ever been
 
used as
 
or for
 
a mine,
 
a
gasoline
 
service
 
station,
 
or
 
an
 
above-ground
 
petroleum
 
products
 
storage
 
facility,
 
a
 
landfill,
 
a
 
dump
 
or
 
other
disposal facility, or for industrial, or manufacturing purposes;
(c)
[reserved];
(d)
All activities, and operations of
 
each Loan Party and each Subsidiary
 
of a Loan Party meet
in all material respects the requirements of all applicable Environmental Laws;
 
 
 
 
 
(e)
Each Loan
 
Party,
 
to its
 
knowledge, has
 
never sent
 
a Hazardous
 
Material to
 
a site
 
which,
pursuant to CERCLA or any similar state law,
 
(1) has been placed on the “National Priorities List”
 
of hazardous
wastes, or (2)
 
which is subject
 
to a claim,
 
an administrative order
 
or other request
 
to take “removal”
 
or “remedial”
action (as defined under CERCLA) or to pay for the costs of cleaning up such a site;
(f)
Each
 
Loan
 
Party,
 
to
 
its
 
knowledge,
 
is
 
not
 
involved
 
in
 
any
 
suit
 
or
 
proceeding
 
nor
 
has
 
it
received any notice from any
 
Environmental Authority with respect to
 
a release of Hazardous Materials
 
nor has
it
 
received
 
notice
 
of
 
any
 
claims
 
from
 
any
 
Person
 
relating
 
to
 
personal
 
injuries
 
from
 
exposure
 
to
 
Hazardous
Materials originating
 
from a
 
Property owned
 
or operated
 
by a
 
Loan Party
 
during the
 
time of
 
that Loan
 
Party’s
ownership or operation thereof;
(g)
Each Loan Party has
 
timely filed all material
 
reports required to
 
be filed, has acquired
 
all
necessary Environmental
 
Authorizations and
 
has generated
 
and maintained
 
in all
 
material respects
 
all required
data, documentation and records as required by any applicable Environmental Laws;
 
and
(h)
No Loan
 
Party nor
 
any Subsidiary
 
of a
 
Loan Party
 
is subject
 
to any
 
Environmental Liability
and no Loan
 
Party nor
 
any Subsidiary
 
of a Loan
 
Party has
 
been designated as
 
a potentially
 
responsible party under
CERCLA.
 
None of
 
the Properties
 
have been
 
identified
 
on any
 
current or
 
proposed (i)
 
National Priorities
 
List
under 40 C.F.R. § 300, (ii) CERCLIS list or (iii) any list arising from a state statute similar to CERCLA.
SECTION 4.14
Assets
 
for
 
Conduct
 
of
 
Business.
 
Each
 
Loan
 
Party
 
possesses
 
adequate
licenses,
 
patents,
 
patent
 
applications,
 
copyrights,
 
trademarks,
 
servicemarks
 
and
 
trade
 
names
 
to
 
continue
 
to
conduct
 
its
 
business
 
as
 
heretofore
 
conducted,
 
without
 
any
 
material
 
conflict
 
or
 
infringement
 
with
 
the
 
rights
 
of
others.
SECTION 4.15
Compliance With
 
Laws.
 
Each Loan
 
Party and
 
each Subsidiary
 
of a
 
Loan
Party has duly
 
complied with, and its
 
Properties and business
 
operations are in
 
compliance in all
 
material respects
with, the provisions of all
 
federal, state and local laws,
 
rules and regulations applicable to
 
each such Loan Party
and each Subsidiary
 
of a Loan
 
Party, the Properties or the conduct
 
of such business,
 
including, without limitation,
all federal and
 
state securities and
 
antitrust laws, ERISA
 
and Environmental
 
Laws, except to
 
the extent that
 
the
failure to
 
comply therewith
 
could
 
not,
 
in
 
the
 
aggregate, have
 
a
 
Material
 
Adverse Effect
 
.
 
There have
 
been no
citations, notices or
 
orders of noncompliance
 
issued to any
 
Loan Party or
 
any Subsidiary of
 
a Loan Party
 
under
any federal,
 
state or
 
local law,
 
rule or
 
regulation applicable
 
to each
 
Loan Party
 
and each
 
Subsidiary of
 
a Loan
Party which would have a Material Adverse Effect.
SECTION 4.16
Contracts.
 
No Loan Party
 
is a party
 
to any contract
 
or agreement, or
 
subject
to any charge,
 
corporate, partnership or limited
 
liability company restriction, judgment,
 
injunction, decree, rule,
regulation or order of any court or governmental authority, which has or would have a Material Adverse Effect.
SECTION 4.17
Subsidiaries.
 
Each
 
of
 
the
 
Loan
 
Parties’
 
Subsidiaries
 
is
 
a
 
corporation,
partnership
 
or
 
limited
 
liability
 
company
 
(or
 
in
 
the
 
case
 
of
 
Cedar
 
Hill
 
National
 
Bank,
 
a
 
national
 
bank)
 
duly
organized, validly existing
 
and in good
 
standing under
 
the laws
 
of its jurisdiction
 
of incorporation
 
or organization,
as the case may be,
 
is duly qualified to transact
 
business in every jurisdiction where, by
 
the nature of its business,
such qualification is
 
necessary,
 
and has all
 
organizational powers and
 
all governmental licenses,
 
authorizations,
consents and approvals required to carry on its business as now conducted, except to the extent
 
that the failure to
comply therewith could not,
 
in the aggregate, have a
 
Material Adverse Effect.
 
As of the Closing Date,
 
no Loan
Party has
 
any Subsidiaries
 
except those
 
Subsidiaries listed
 
on Schedule
 
4.17,
 
which accurately
 
sets
 
forth each
such Subsidiary’s complete name and jurisdiction of organization.
SECTION 4.18
Not an Investment Company.
 
No Loan Party nor any Subsidiary of a Loan
Party is an “investment company”
 
within the meaning of the Investment Company Act of 1940, as amended.
 
 
 
 
 
 
SECTION 4.19
Public Utility Holding
 
Company Act.
 
No Loan Party nor
 
any Subsidiary of
a Loan Party is
 
a “holding company”,
 
or a “subsidiary
 
company”
 
of a “holding
 
company”, or an
 
“affiliate”
 
of a
“holding company”
 
or of a
 
“subsidiary company”
 
of a “holding
 
company”, as such
 
terms are defined
 
in the Public
Utility Holding Company Act of 1935, as amended.
SECTION 4.20
Insolvency.
 
After giving
 
effect to
 
the execution
 
and delivery
 
of the
 
Loan
Documents
 
and
 
the
 
making
 
of
 
the
 
Revolving
 
Credit
 
Advances
 
under
 
this
 
Agreement,
 
no
 
Loan
 
Party
 
will
 
be
“insolvent”, within the meaning of such term as
 
defined in § 101 of Title 11 of the United States Code or Section
2 of the Uniform Fraudulent Transfer
 
Act, or any other applicable state law pertaining to
 
fraudulent transfers, as
each may
 
be amended
 
from time
 
to time,
 
or be
 
unable to
 
pay its
 
debts generally
 
as such
 
debts become
 
due, or
have an unreasonably small capital to engage in any business or transaction, whether current or contemplated.
SECTION 4.21
Labor
 
Matters.
 
There
 
are
 
no
 
significant
 
strikes,
 
lockouts,
 
slowdowns
 
or
other labor disputes against any Loan Party or any Subsidiary of any Loan Party pending or, to the knowledge of
any
 
Loan Party,
 
threatened
 
which would
 
have a
 
Material Adverse
 
Effect.
 
The hours
 
worked by
 
and
 
payment
made to employees of
 
the Loan Parties and
 
each Subsidiary of any
 
Loan Party have not
 
been in violation
 
of the
Fair Labor Standards Act or any other
 
applicable federal, state or foreign law dealing
 
with such matters except to
the extent such violation would not have a Material Adverse Effect.
SECTION 4.22
Anti-Terrorism Laws.
 
None of the Loan
 
Parties, nor any of
 
their respective
Subsidiaries, is in violation of any laws relating to terrorism or money laundering, including the Patriot Act.
SECTION 4.23
Compliance
 
with
 
Sanctions;
 
Anti-Money
 
Laundering
 
Program;
 
Anti-
Corruption Laws;
 
Beneficial Ownership Regulation.
(a)
Neither
 
Borrower
 
nor
 
any
 
Affiliate
 
of
 
Borrower
 
nor,
 
to
 
Borrower’s
 
knowledge,
 
any
director, officer,
 
agent, employee of Borrower or any Affiliate
 
of Borrower: (i) has used any corporate
 
funds for
any
 
unlawful
 
contribution,
 
gift,
 
entertainment
 
or
 
other
 
unlawful
 
expense
 
relating
 
to
 
political
 
activity
 
or
 
to
influence
 
official
 
action;
 
(ii)
 
has
 
made
 
any
 
direct
 
or
 
indirect
 
unlawful
 
payment
 
to
 
any
 
foreign
 
or
 
domestic
government
 
official
 
or
 
employee
 
from
 
corporate
 
funds;
 
(iii)
 
has
 
made
 
any
 
bribe,
 
rebate,
 
payoff,
 
influence
payment, kickback or other unlawful
 
payment; or (iv) has violated
 
or is in violation of
 
any Anti-Corruption Laws
or
 
Anti-Money
 
Laundering
 
Laws;
 
and
 
each of
 
Borrower
 
and
 
each
 
Affiliate
 
of
 
Borrower have
 
conducted
 
their
business in compliance with the Anti- Corruption Laws and Anti-Money Laundering Laws.
(b)
Neither:
 
(i)
 
Borrower,
 
any
 
Affiliate
 
of
 
Borrower,
 
nor,
 
to
 
Borrower’s
 
knowledge,
 
any
 
of
their respective directors,
 
officers, agents, employees
 
or Affiliates; nor
 
(ii) to Borrower’s
 
knowledge, any agent
or representative of Borrower
 
or any such Affiliate that
 
will act in any
 
capacity in connection with
 
any Revolving
Credit Advances
 
or that will
 
benefit from
 
any Revolving Credit
 
Advances: (A) is
 
a Sanctioned Person
 
or is owned
or controlled
 
by a
 
Sanctioned Person;
 
(B) has
 
any assets
 
located in
 
a Sanctioned
 
Country; (C)
 
directly or
 
indirectly
derives
 
revenues
 
from
 
investments
 
in,
 
or
 
transactions
 
with,
 
Sanctioned
 
Persons;
 
or
 
(D)
 
has
 
taken
 
any
 
action,
directly or indirectly, that violates any Sanctions, Anti-Corruption Laws or Anti-Money Laundering Laws.
(c)
No proceeds
 
of any
 
Revolving Credit
 
Advance have
 
been used,
 
directly or
 
indirectly,
 
by
Borrower or any Affiliate of
 
Borrower or any of
 
their respective directors, officers, agents, employees,
 
Affiliates,
agents or representatives for the purpose of funding, financing
 
or facilitating any activity, business or transaction
of or
 
with any
 
Sanctioned Person,
 
or of,
 
with or
 
in any
 
Sanctioned Country,
 
including, but
 
not limited
 
to, any
payment (directly
 
or indirectly)
 
to a
 
Sanctioned Person
 
or a
 
Sanctioned Country,
 
or that
 
violates any
 
Sanctions
applicable to any party hereto.
 
ARTICLE V
COVENANTS
The Loan Parties agree, jointly and severally,
 
that, so long as any Bank has any Revolving Credit
Commitment hereunder or any Letter of Credit is
 
outstanding or any amount payable under any
 
Note or Letter of
Credit Advance remains unpaid:
SECTION 5.01
Information.
 
Borrower will deliver to each of the Banks:
(a)
As
 
soon
 
as
 
practicable
 
and
 
in
 
any
 
event
 
45
 
days
 
after
 
the
 
close
 
of
 
each
 
Fiscal
 
Quarter
(except the fourth Fiscal Quarter in each
 
Fiscal Year) of Borrower,
 
a consolidated balance sheet of Borrower and
its Subsidiaries
 
as of
 
the close
 
of such
 
Fiscal Quarter
 
and consolidated
 
statements of
 
income, retained
 
earnings
and cash flows for
 
that Fiscal Quarter and
 
for the portion of
 
the Fiscal Year
 
then ended, prepared in
 
accordance
with GAAP,
 
applied on a basis consistent with that of the preceding period or containing disclosure of the
 
effect
on
 
the
 
financial
 
position
 
or
 
results
 
of
 
operation
 
of
 
any
 
change
 
in
 
the
 
application
 
of
 
accounting
 
principles
 
and
practices during the period and certified by the chief financial officer of Borrower;
(b)
As soon as practicable and
 
in any event within 120 days
 
after the close of each Fiscal
 
Year
of Borrower an audited consolidated balance sheet of Borrower
 
and its Subsidiaries as of the close of such Fiscal
Year,
 
and an audited consolidated statement of income, retained earnings and cash flows prepared in accordance
with GAAP, each audited by PricewaterhouseCoopers LLP or such other
 
independent certified public accountant
reasonably acceptable
 
to the
 
Agent in
 
accordance
 
with GAAP,
 
applied on
 
a basis
 
consistent with
 
those of
 
the
preceding Fiscal Year or containing disclosure of
 
the effect on the financial
 
position or results
 
of operation of any
change in the application of accounting principles and
 
practices during the Fiscal Year; such financial statements
shall be accompanied by
 
a report thereon by
 
such certified public
 
accountants, containing an opinion
 
that is not
qualified with
 
respect to
 
scope, limitations
 
or accounting
 
principles followed
 
by Borrower
 
and its
 
Subsidiaries
not being in accordance with GAAP,
 
all in a form reasonably acceptable to Agent and the Banks;
(c)
Borrower
 
shall
 
notify
 
the
 
Agent
 
and
 
each
 
Bank
 
that
 
previously
 
received
 
a
 
Beneficial
Ownership Certification
 
(or a
 
certification that
 
Borrower qualifies
 
for an
 
express exclusion
 
to the
 
“legal entity
customer” definition under
 
the Beneficial
 
Ownership Regulation)
 
of any
 
change in the
 
information provided
 
in
the Beneficial
 
Ownership Certification
 
that would
 
result in
 
a change
 
to the
 
list
 
of beneficial
 
owners identified
therein (or,
 
if applicable,
 
Borrower ceasing
 
to fall
 
within an
 
express exclusion
 
to the
 
definition of
 
“legal entity
customer” under
 
the Beneficial
 
Ownership Regulation)
 
and (c)
 
promptly upon
 
the reasonable
 
request of
 
the Agent
or any Bank,
 
provide the Agent or
 
directly to such Bank,
 
as the case may
 
be, any information or documentation
requested by it for purposes of complying with the Beneficial Ownership Regulation;
(d)
As soon as practicable and in any event
 
within 60 days after the close of
 
each Fiscal Year
of
 
Borrower,
 
an
 
operating
 
and
 
capital
 
budget
 
of
 
Borrower
 
and
 
its
 
Subsidiaries
 
for
 
the
 
ensuing
 
four
 
(4)
 
Fiscal
Quarters;
 
(e)
Concurrently with the delivery of the financial statements described
 
in subsections (a) and
(b) above, a certificate
 
(a “Compliance Certificate”) from
 
Borrower, substantially in the form of
 
Exhibit F hereto,
by
 
a
 
Designated
 
Officer
 
(i)
 
certifying
 
to
 
the
 
Banks
 
that
 
the
 
Loan
 
Parties
 
have
 
kept,
 
observed,
 
performed
 
and
fulfilled in all material respects each and every
 
covenant, obligation and agreement binding upon any Loan
 
Party
contained in
 
this
 
Agreement
 
or the
 
other
 
Loan
 
Documents, (ii)
 
calculating the
 
financial covenants
 
set forth
 
in
Sections 5.03 and
 
5.05 hereof, (iii)
 
setting forth the
 
identity of the Subsidiaries
 
of Borrower on
 
the date of
 
such
certificate; and
 
(iv) certifying
 
to the
 
Banks that
 
no Event
 
of Default
 
or Default
 
has occurred,
 
or specifying
 
any
such Event of Default or Default;
 
 
(f)
within 5 Domestic
 
Business Days after a
 
Loan Party becomes aware
 
of the occurrence
 
of
any Default, if such Default
 
is then occurring, a certificate of
 
a Designated Officer of
 
Borrower setting forth the
details thereof and the action which Borrower is taking or proposes to take with respect thereto;
(g)
promptly upon the mailing thereof to the shareholders of any Loan Party generally, copies
of all financial statements, reports and proxy statements so mailed;
(h)
to the
 
extent not
 
otherwise publicly
 
available promptly
 
upon the
 
filing thereof,
 
copies of
all
 
registration
 
statements
 
(other
 
than
 
the
 
exhibits
 
thereto
 
and
 
any
 
registration
 
statements
 
on
 
Form
 
S-8
 
or
 
its
equivalent) and annual, quarterly or monthly reports which any Loan Party shall have filed with the SEC;
(i)
if and when any
 
Loan Party or any
 
member of the Controlled Group
 
(i) gives or is required
to give notice to the PBGC of any
 
“reportable event”
 
(as defined in Section 4043 of ERISA) with
 
respect to any
Plan which might
 
constitute grounds for
 
a termination of
 
such Plan under
 
Title IV of
 
ERISA, or knows
 
that the
plan administrator of any Plan has given
 
or is required to give notice of
 
any such reportable event, a copy
 
of the
notice of
 
such reportable
 
event given
 
or required
 
to be
 
given to
 
the PBGC;
 
(ii) receives
 
notice of
 
complete or
partial withdrawal liability
 
under Title IV of
 
ERISA, a copy
 
of such notice;
 
or (iii) receives
 
notice from the
 
PBGC
under Title
 
IV of
 
ERISA
 
of an
 
intent to
 
terminate
 
or
 
appoint a
 
trustee
 
to
 
administer any
 
Plan,
 
a
 
copy of
 
such
notice;
(j)
promptly,
 
but
 
in
 
no
 
event
 
later
 
than
 
three
 
Domestic
 
Business
 
Days
 
after
 
a
 
Designated
Officer
 
of
 
any
 
Loan
 
Party
 
obtains
 
knowledge
 
thereof,
 
give
 
written
 
notice
 
to
 
the
 
Agent
 
of:
 
(a)
 
any
 
material
litigation or proceeding brought against any
 
Loan Party, whether or not the claim is considered
 
by any such Loan
Party to be covered
 
by insurance (for the purpose
 
hereof, any litigation against any
 
Loan Party seeking to
 
recover
$2,500,000 or more in
 
damages shall be deemed
 
material); (b) any written
 
notice of a violation
 
received by any
Loan Party from
 
any governmental regulatory
 
body or law
 
enforcement authority which,
 
if such violation
 
were
established, would have a Material Adverse Effect; (c) any labor controversy that has resulted
 
in a strike or other
work action
 
that might
 
reasonably be
 
expected to
 
have a
 
Material Adverse
 
Effect; (d)
 
any attachment,
 
Lien, or
levy that may
 
be placed
 
on or assessed
 
against or
 
threatened against any
 
Loan Party,
 
or any property
 
of a
 
Loan
Party, other than
 
Permitted Liens; (e) any judgments or orders involving
 
cost to the Loan Parties in
 
aggregate of
more than
 
$2,500,000 in
 
any Fiscal
 
Year;
 
(f) any
 
Event of
 
Default; and
 
(g) any
 
other matter
 
that has
 
or would
have a Material Adverse Effect; and
(k)
from time to time such additional
 
information regarding the financial position or business
of the
 
Loan Parties
 
and their
 
respective Subsidiaries
 
as the
 
Agent, at
 
the request
 
of any
 
Bank, may
 
reasonably
request.
SECTION 5.02
Inspection
 
of
 
Property,
 
Books
 
and
 
Records.
 
Borrower
 
will
 
(i)
 
keep,
 
and
will cause each Subsidiary to
 
keep, proper books of
 
record and account in
 
which full, true and
 
correct entries in
conformity with
 
GAAP and applicable
 
law shall be
 
made of
 
all dealings
 
and transactions in
 
relation to its
 
business
and
 
activities;
 
(ii)
 
permit,
 
and
 
will
 
cause
 
each
 
Subsidiary of
 
the
 
Loan Parties
 
to
 
permit,
 
with
 
reasonable
 
prior
notice and at reasonable times, the Agent or
 
its designee, at the expense of the
 
Loan Parties, to perform periodic
field audits and investigations of
 
the respective Loan Parties, provided, however,
 
that if no Event of
 
Default has
occurred and
 
is continuing,
 
no more
 
than one
 
(1) examination
 
per calendar
 
year shall
 
be at
 
the expense
 
of the
Loan
 
Parties;
 
and
 
(iii)
 
permit,
 
and
 
will
 
cause
 
each
 
Subsidiary
 
to
 
permit,
 
representatives
 
of
 
any
 
Bank
 
at
 
such
Bank’s expense prior to the occurrence of an Event of Default and at Borrower’s expense after the occurrence of
an Event
 
of Default
 
to visit
 
and inspect
 
any of
 
their respective
 
properties, to
 
examine and
 
make abstracts
 
from
any of their respective books and records and to discuss their respective affairs,
 
finances and accounts with their
respective
 
officers,
 
employees
 
and
 
upon
 
the
 
consent
 
of
 
such
 
Loan
 
Party,
 
which
 
shall
 
not
 
be
 
unreasonably
withheld, its independent public accountants
 
(and by this provision each
 
Loan Party authorizes said accountants
to discuss the
 
finances and affairs
 
of such
 
Loan Party and
 
to provide said
 
accountants with such
 
further written
 
 
 
 
 
authorization
 
as
 
they
 
may
 
require),
 
upon
 
reasonable
 
notice
 
and
 
at
 
reasonable
 
times
 
and
 
as
 
often
 
as
 
may
 
be
reasonably requested.
 
The Loan Parties agree to cooperate and assist in such visits and inspections, in each case
at such reasonable times and during business hours and as often as may reasonably be desired.
SECTION 5.03
Minimum EBITDAR
 
Coverage Ratio.
 
Commencing as
 
of the
 
last day
 
of
the first
 
Fiscal Quarter
 
of Fiscal
 
Year
 
2022, and
 
in each
 
case continuing
 
on the
 
last day
 
of each
 
Fiscal Quarter
ending thereafter, the Minimum EBITDAR Coverage Ratio shall not be less than 1.15 to 1.0.
SECTION 5.04
Acquisitions.
 
(a)
No Loan Party nor any Subsidiary
 
of a Loan Party shall make an Acquisition
 
unless (i) the
Acquisition has been approved and recommended by the
 
board of directors of the Person
 
to be acquired or from
which such assets or
 
business is to be
 
acquired and the line
 
or lines of business
 
of the Person to
 
be acquired are
the same as or reasonably related
 
to one or more line or
 
lines of business in which the
 
Loan Party is engaged on
the Closing
 
Date, (ii)
 
no Default
 
or Event
 
of Default
 
shall have
 
occurred and
 
be continuing
 
either immediately
prior to or immediately after giving effect
 
to such Acquisition, (iii) the Person
 
acquired shall be a Subsidiary,
 
or
be merged into a
 
Loan Party, immediately upon consummation of
 
the Acquisition (or if
 
assets are being acquired,
the acquiror
 
shall be
 
a Loan
 
Party), and
 
(iv) after
 
giving effect
 
to such
 
Acquisition: (A)
 
the aggregate
 
Costs of
Acquisition incurred by any Loan Party or any Subsidiary of a Loan Party in any single transaction or in a series
of related transactions shall not
 
exceed $50,000,000; and (B) the aggregate
 
Costs of Acquisition incurred by
 
the
Loan Parties and all Subsidiaries of the
 
Loan Parties during any Fiscal Year
 
shall not exceed $75,000,000 in the
aggregate.
(b)
Not
 
less
 
than
 
ten
 
(10)
 
Domestic
 
Business
 
Days
 
prior
 
to
 
the
 
consummation
 
of
 
any
Acquisition permitted under Section
 
5.04(a) with respect to
 
which the Costs of
 
Acquisition exceeds $10,000,000,
Borrower shall
 
have delivered
 
to the
 
Agent and
 
each Bank
 
pro forma
 
financial statements
 
demonstrating that
 
none
of
 
the
 
financial
 
covenants
 
set
 
forth
 
in
 
Sections
 
5.03
 
and
 
5.05
 
will
 
be
 
violated
 
after
 
giving
 
pro
 
forma
 
effect
(calculated pursuant to Section 1.08) to such Acquisition.
SECTION 5.05
Minimum
 
Consolidated Tangible
 
Net Worth.
 
Consolidated Tangible
 
Net
Worth shall at no
 
time be
 
less than the
 
sum of
 
(a) $190,000,000,
 
plus, (b) if
 
Net Income
 
for any
 
Fiscal
Ye
ar ending
January 28,
 
2023 and thereafter
 
is a positive
 
number, an amount equal
 
to 15% of
 
Net Income for
 
such Fiscal Year,
(c) minus, the
 
minimum threshold for shares
 
repurchased to offset dilution
 
from Borrower’s equity compensation
plans, not to exceed $10,000,000 per Fiscal Year
 
ending after January 29, 2022.
SECTION 5.06
Restrictions on Dividends,
 
etc.
 
No Loan
 
Party nor any
 
Subsidiary of a
 
Loan
Party shall:
(a)
with respect
 
to Borrower, declare
 
or pay
 
any dividends
 
(other than
 
dividends payable
 
solely
in its own Capital Stock) upon any of its
 
Capital Stock unless, at such time, no Default or Event
 
of Default shall
exist or would exist immediately after the payment of such dividend; or
(b)
repurchase shares
 
of its
 
own Capital
 
Stock (or
 
options or
 
rights to
 
acquire its
 
Capital Stock),
provided, however, that Borrower
 
or any Subsidiary
 
may purchase shares
 
of its own
 
capital stock unless
 
a Default
or Event of Default exists or would exist immediately after payment for any such purchase; or
(c)
with respect to
 
Borrower, make
 
any other distribution
 
of property or
 
assets (other than as
provided in paragraphs (a) and (b) of this Section 5.06) among the holders of shares of its Capital Stock.
SECTION 5.07
Banking
 
Relationship.
 
The
 
Loan
 
Parties
 
shall
 
transfer
 
their
 
primary
demand deposit
 
accounts and
 
cash management
 
accounts for
 
operations in
 
the United
 
States to
 
the Agent
 
and,
thereafter, shall maintain their primary demand deposit accounts and cash management accounts with the Agent.
 
 
 
 
 
The timing
 
for such
 
transfer shall
 
be made
 
in good
 
faith and
 
in the
 
Loan Parties’
 
commercially reasonable
 
business
judgement.
 
SECTION 5.08
Intentionally Omitted.
 
SECTION 5.09
Intentionally Omitted.
SECTION 5.10
Investments.
 
No Loan Party nor
 
any Subsidiary of a Loan
 
Party shall make
Investments in any Person except:
 
(a)
Acquisitions permitted under Section 5.04;
 
(b)
Investments by Borrower in any Subsidiary or
 
by any Subsidiary in Borrower or any other
Subsidiary;
 
(c)
cash
 
and
 
Investments
 
made
 
in
 
accordance
 
with
 
Borrower’s
 
Investment
 
Policy,
 
as
 
such
Investment
 
Policy
 
may
 
be
 
amended
 
or
 
modified
 
from
 
time
 
to
 
time
 
in
 
Borrower’s
 
commercially
 
reasonable
judgment and upon notice to the Agent;
(d)
loans and
 
advances to
 
employees of
 
a Loan
 
Party for
 
reasonable travel
 
and business
 
and
relocation expenses in the ordinary course of business;
 
(e)
loans to
 
officers, directors
 
and employees
 
so that
 
such officers,
 
directors and
 
employees
may
 
acquire
 
common
 
stock
 
of
 
Borrower
 
(so
 
long
 
as
 
no
 
Cash
 
is
 
actually
 
advanced
 
by
 
Borrower
 
or
 
any
 
of
 
its
Subsidiaries in connection with such loans);
(f)
Borrower may enter into Hedge Agreements to the extent permitted by Section 5.27(h);
(g)
extensions of trade credit in the ordinary course of business;
 
(h)
prepaid expenses incurred in the ordinary course of business;
 
(i)
Investments received in connection with the bankruptcy or
 
reorganization of suppliers and
customers
 
and
 
in
 
good
 
faith
 
settlement
 
of
 
delinquent
 
obligations
 
of,
 
and
 
other
 
disputes
 
with,
 
customers
 
and
suppliers arising in the ordinary course of business;
(j)
Guarantees permitted by Section 5.27(g);
(k)
Investments in promissory notes
 
and other non-cash consideration
 
received in connection
with any asset sale permitted under clause (vi) of Section 5.14;
 
(l)
Investments in existence on the date hereof and described in Schedule 5.10;
(m)
Investments
 
of
 
any
 
Person
 
existing
 
at
 
the
 
time
 
such
 
Person
 
becomes
 
a
 
Subsidiary
 
or
consolidates or
 
merges
 
with Borrower
 
or any
 
Subsidiary (including
 
in connection
 
with Acquisitions
 
permitted
under Section
 
5.04), so
 
long as
 
such
 
Investments were
 
not made
 
in contemplation
 
of such
 
Person becoming
 
a
Subsidiary or of such merger;
(n)
Investments
 
consisting
 
of
 
real
 
property
 
and
 
cash
 
to
 
pay
 
for
 
incidental
 
expenses
 
in
connection with the Fort Mill Land; and
(o)
Investments not
 
otherwise permitted
 
under this
 
Section 5.10
 
in an
 
aggregate amount
 
not
exceeding $15,000,000 at any one time; provided that any Investment made pursuant
 
to this Section 5.10(o) that
 
is
 
subsequently
 
sold
 
for
 
cash
 
or
 
otherwise
 
cancelled,
 
liquidated
 
or
 
repaid
 
for
 
cash
 
or
 
made
 
in
 
any
 
entity
 
that
subsequently becomes
 
a Subsidiary,
 
the initial
 
amount of
 
such Investment
 
shall not
 
be included
 
in this
 
Section
5.10(o).
SECTION 5.11
Negative Pledge.
 
No Loan
 
Party nor
 
any Subsidiary
 
of a
 
Loan Party
 
will
create, assume or suffer to exist any Lien on any asset now owned or hereafter acquired by it, except:
(a)
Liens
 
imposed
 
by
 
law,
 
such
 
as
 
carriers’,
 
warehousemen’s,
 
landlord’s
 
and
 
mechanics’
Liens, in each case, incurred in the ordinary course of business;
(b)
Liens
 
incurred
 
in
 
the
 
ordinary
 
course
 
of
 
business
 
in
 
connection
 
with
 
worker’s
compensation,
 
unemployment
 
insurance
 
or
 
other
 
forms
 
of
 
governmental
 
insurance
 
or
 
benefits
 
or
 
to
 
secure
obligations on surety or appeal bonds;
(c)
Liens
 
for
 
current
 
taxes
 
(including
 
income
 
withholding
 
taxes),
 
assessments
 
or
 
other
governmental charges
 
that are
 
(i) not
 
delinquent or
 
remain payable
 
without any
 
penalty or
 
(ii) less
 
than $5,000,000
in the aggregate,
 
or (iii) being
 
contested in good
 
faith and with
 
due diligence by
 
appropriate proceedings, if
 
the
affected
 
Loan Party
 
has
 
established adequate
 
reserves with
 
respect thereto
 
in accordance
 
with
 
GAAP
 
or,
 
with
respect
 
to
 
liens
 
arising
 
in
 
connection
 
with
 
income
 
tax
 
withholding,
 
such
 
Loan
 
Party
 
has
 
established
 
adequate
reserves with respect thereto;
(d)
statutory
 
liens
 
of
 
banks
 
and
 
other
 
financial
 
institutions
 
arising
 
during
 
the
 
collection
 
of
instruments in the ordinary course of business;
(e)
pledges
 
or
 
deposits
 
in
 
the
 
ordinary
 
course
 
of
 
a
 
Loan
 
Party’s
 
business
 
to
 
secure
 
the
performance of leases or contracts entered into in the ordinary course of business;
(f)
Liens upon any
 
assets subject to
 
a Capital Lease
 
and securing payment
 
of the obligations
arising under such Capital Lease and
 
any liens upon any equipment
 
subject to an equipment operating lease
 
and
securing payment of the obligations arising under such lease;
(g)
zoning
 
restrictions,
 
easements,
 
licenses,
 
landlord’s
 
liens
 
or
 
restrictions
 
on
 
the
 
use
 
of
property which do not materially
 
impair the use of such properly
 
in the operation of the business
 
of a Loan Party;
(h)
Liens securing the
 
purchase price of
 
assets attaching only
 
to such assets
 
securing aggregate
Debt of Loan Parties and their Subsidiaries not in excess of $5,000,000;
(i)
attachment,
 
judgment
 
or
 
similar
 
Liens
 
arising
 
in
 
connection
 
with
 
court
 
proceedings;
provided, that the
 
execution or other
 
enforcement of such
 
Liens with respect
 
to judgments or
 
decrees involving
in the aggregate
 
a liability of
 
$5,000,000 or more
 
is effectively stayed
 
and the claims
 
secured thereby are
 
being
actively contested in good faith by appropriate proceedings and Borrower or any Subsidiary,
 
as the case may be,
shall have set aside on its books, if required by GAAP,
 
appropriate reserves for such Liens;
(j)
any Lien
 
securing any
 
obligations and
 
liabilities arising
 
under or
 
in connection
 
with any
cash management
 
arrangements entered
 
into in
 
the ordinary
 
course of
 
business prior to,
 
on or
 
after the
 
date hereof,
including, without
 
limitation,
 
any netting
 
or
 
set-off
 
system for
 
the
 
calculation
 
of
 
interest
 
with
 
respect to
 
debit
balances and credit balances under such arrangements;
 
provided that the assets subject to any such
 
Lien shall be
limited
 
to
 
the
 
assets
 
held
 
from
 
time
 
to
 
time
 
at
 
the
 
financial
 
institution
 
providing
 
such
 
cash
 
management
arrangements;
(k)
Liens arising
 
in the
 
ordinary course
 
of business
 
solely with
 
respect to
 
cash, cash
 
equivalents
and Investments permitted by Section 5.10(c)
 
in favor of a creditor
 
depositary institution solely by virtue
 
of any
 
 
 
statutory or common law provision relating
 
to banker’s liens, rights of set-off or similar rights and
 
remedies as to
deposit accounts or other funds maintained with such creditor depository institution;
(l)
(a) leases,
 
licenses, subleases or
 
sublicenses granted to
 
other Persons
 
in the ordinary
 
course
of business which do not (i) interfere in any
 
material respect with the business of of Borrower
 
or any Subsidiary
or (ii) secure any Debt for borrowed money or (b) the rights reserved
 
or vested in any Person by the terms of any
lease,
 
license,
 
franchise,
 
grant
 
or
 
permit
 
held
 
by
 
Borrower
 
or
 
any
 
Subsidiary
 
or
 
by
 
a
 
statutory
 
provision,
 
to
terminate
 
any
 
such
 
lease,
 
license,
 
franchise,
 
grant
 
or
 
permit,
 
or
 
to
 
require
 
annual
 
or
 
periodic
 
payments
 
as
 
a
condition to the continuance thereof;
 
(m)
Liens arising out
 
of conditional
 
sale, title retention,
 
consignment or similar
 
arrangements
for sale of goods entered into
 
by Borrower or any Subsidiary
 
in the ordinary course of business
 
to the extent such
Liens do
 
not attach
 
to any
 
assets other
 
than the
 
goods subject
 
to such
 
arrangements and
 
are not
 
intended as
 
security
for financing transactions;
(n)
Liens on Cash
 
securing letters of
 
credit issued to
 
secure a customs
 
bonds in an
 
aggregate
amount not exceeding $2,000,000;
(o)
Liens not described in subclauses (a) through (n) above or subclause (m) below that relate
to liabilities not in excess of $2,000,000 in the aggregate; and
(p)
Liens on the
 
documents to be
 
presented under documentary
 
trade letters of
 
credit permitted
under Section 5.27(n)
 
(and the inventory
 
the purchase, shipment
 
or storage price
 
of which is
 
supported by such
documentary trade letters
 
of credit), so long
 
as such
 
Liens are extinguished when
 
such inventory is
 
delivered to
the Loan Parties
 
and provided that
 
such Liens secure
 
only the reimbursement
 
obligations of the
 
Loan Parties in
respect of such documentary trade letters of credit.
SECTION 5.12
Fundamental
 
Changes.
 
No
 
Loan
 
Party
 
will,
 
nor
 
will
 
it
 
permit
 
any
Subsidiary
 
to,
 
merge
 
into
 
or
 
consolidate
 
with
 
any
 
other
 
Person,
 
or
 
permit
 
any
 
other
 
Person
 
to
 
merge
 
into
 
or
consolidate with it, or otherwise
 
sell or transfer all or
 
substantially all of its assets,
 
or all or substantially all
 
of the
stock of any of its Subsidiaries (in each
 
case, whether now owned or hereafter acquired), or liquidate or
 
dissolve,
except
 
that,
 
if
 
at
 
the
 
time
 
thereof
 
and
 
immediately
 
after
 
giving
 
effect
 
thereto
 
no
 
Event
 
of
 
Default
 
shall
 
have
occurred and
 
be
 
continuing, (i)
 
any Subsidiary
 
may merge
 
into
 
or consolidate
 
with Borrower
 
or
 
another
 
Loan
Party in
 
a transaction
 
in which
 
Borrower or
 
such Loan
 
Party is
 
the surviving
 
entity,
 
(ii) any
 
Loan Party
 
(other
than Borrower) may merge into or consolidate with
 
any other Loan Party in a transaction in
 
which the surviving
entity is
 
a Loan
 
Party,
 
(iii) any
 
Subsidiary that
 
is not
 
a Loan Party
 
may merge
 
into or
 
consolidate with
 
another
Subsidiary that is not a
 
Loan Party,
 
and (iv) any Subsidiary may
 
liquidate or dissolve if
 
Borrower determines in
good
 
faith
 
that
 
such
 
liquidation
 
or
 
dissolution
 
is
 
in
 
the
 
best
 
interests
 
of
 
Borrower
 
and
 
is
 
not
 
materially
disadvantageous to the Banks.
SECTION 5.13
Intentionally Omitted.
SECTION 5.14
Sales of Assets.
 
No Loan Party will, nor will
 
it permit any Subsidiary of a
Loan
 
Party
 
to,
 
sell,
 
lease
 
or
 
otherwise
 
transfer
 
any
 
asset,
 
except
 
(i)
 
sales,
 
transfers,
 
leases,
 
licenses
 
or
 
other
dispositions
 
of
 
inventory
 
for
 
fair
 
value
 
in
 
the
 
ordinary
 
course
 
of
 
business,
 
(ii)
 
the
 
sale,
 
exchange
 
or
 
other
disposition of
 
cash, cash
 
equivalents and
 
other Investments,
 
(iii) the
 
sale, lease
 
or other
 
disposition of
 
assets to
Borrower or any Subsidiary
 
and so long as
 
no Event of Default
 
shall have occurred and
 
be continuing or would
result
 
therefrom,
 
(iv)
 
the
 
sale,
 
exchange
 
or
 
other
 
disposition
 
in
 
the
 
ordinary course
 
of
 
business
 
of
 
equipment,
capital assets or property no longer used or useful, or that is
 
obsolete, redundant, worn-out, expired or surplus, in
the ordinary
 
course of
 
business, (v)
 
dispositions resulting
 
from any
 
casualty or
 
other damage
 
to, or
 
any taking
under power of eminent domain or by condemnation or similar proceeding of, any property or asset of Borrower
or any Subsidiary
 
,
 
and (vi)
 
during any
 
Fiscal Year
 
and to
 
the extent
 
not otherwise permitted
 
under this
 
Section
 
 
 
5.14, a
 
transfer,
 
lease or
 
other disposition
 
of assets;
 
provided that
 
the aggregate
 
fair market
 
value
 
of all
 
assets
disposed of in
 
reliance on this
 
clause (vi) during
 
any such Fiscal
 
Year shall not exceed 10% of
 
Consolidated Total
Assets at the end of the most recent Fiscal Year
 
immediately preceding such Fiscal Year
 
.
SECTION 5.15
Use
 
of
 
Proceeds.
 
No
 
portion
 
of
 
the
 
proceeds
 
of
 
the
 
Revolving
 
Credit
Advances will
 
be used
 
by Borrower
 
or any
 
Subsidiary (i)
 
in connection
 
with, either
 
directly or
 
indirectly,
 
any
tender offer
 
for, or
 
other acquisition
 
of, stock of
 
any corporation with
 
a view towards
 
obtaining control of
 
such
other
 
corporation
 
(other
 
than
 
an
 
Acquisition
 
permitted
 
under
 
Section
 
5.04),
 
(ii)
 
directly
 
or
 
indirectly,
 
for
 
the
purpose, whether immediate,
 
incidental or ultimate,
 
of purchasing or
 
carrying any Margin
 
Stock which
 
violates
Regulation T,
 
U or X,
 
or (iii) for
 
any purpose in violation
 
of any applicable
 
law or regulation.
 
The proceeds of
the Revolving Credit Advances shall be used for general corporate purposes and working capital.
SECTION 5.16
Compliance with Laws;
 
Payment of Taxes.
 
Each Loan Party will, and will
cause each Subsidiary of a Loan Party
 
and each member of the Controlled
 
Group to: (a) comply with applicable
laws
 
(including
 
but
 
not
 
limited
 
to
 
ERISA),
 
regulations
 
and
 
similar
 
requirements
 
of
 
governmental
 
authorities
(including but not
 
limited to PBGC),
 
except where the
 
necessity of such
 
compliance is
 
being contested in
 
good
faith
 
through
 
appropriate
 
proceedings
 
diligently
 
pursued
 
or
 
except
 
to
 
the
 
extent
 
that
 
the
 
failure
 
to
 
comply
therewith could
 
not be
 
expected to
 
have a
 
Material Adverse
 
Effect;
 
(b) make
 
timely payment
 
of contributions
required to meet the minimum funding standards set forth
 
in ERISA with respect to any Plan; (c)
 
promptly, upon
the request
 
of any
 
Banks,
 
furnish to
 
the
 
Agent and
 
the Banks
 
copies
 
of
 
any annual
 
report
 
required
 
to be
 
filed
under ERISA in connection with any
 
Plan; (d) not take any action or
 
fail to take action, the result
 
of which action
or inaction could be a material liability of any Loan
 
Party to the PBGC or to a Multiemployer Plan; (e)
 
notify the
Agent and the Banks
 
as soon as
 
practicable of any Reportable
 
Event and of any
 
additional act or condition
 
arising
in connection with any Plan which any
 
Loan Party believes might constitute grounds
 
for the termination thereof
by the
 
PBGC or
 
for the
 
appointment by
 
the appropriate
 
United States
 
District Court
 
of a
 
trustee to
 
administer
such plan; and (f) observe and remain in compliance with all licenses, permits, franchises or other authorizations
necessary to the ownership of its properties or the conduct of its business, and all covenants and conditions of
 
all
agreements and instruments
 
to which a
 
Loan Party is
 
a party,
 
except where the
 
necessity of such
 
compliance is
being contested in good faith
 
through appropriate proceedings diligently pursued
 
or except to the extent
 
that the
failure to comply therewith could not be expected to
 
have a Material Adverse Effect.
 
Each Loan Party will, and
will
 
cause
 
each
 
Subsidiary
 
of
 
a
 
Loan
 
Party
 
to,
 
pay
 
promptly
 
when
 
due
 
all
 
taxes,
 
assessments,
 
governmental
charges, claims
 
for labor,
 
supplies, rent and
 
other obligations which,
 
if unpaid, might
 
become a lien
 
against the
property of
 
a Loan
 
Party or
 
any Subsidiary
 
of a
 
Loan Party,
 
except liabilities
 
being contested
 
in good
 
faith by
appropriate proceedings diligently pursued and against which, if
 
requested by the Agent, Borrower shall have set
up reserves in accordance
 
with GAAP or
 
except outstanding liabilities,
 
in the aggregate at
 
any one time,
 
of less
than $10,000,000.
 
No Loan Party shall
 
participate in any Prohibited
 
Transaction which
 
could subject any Loan
Party to any material civil
 
penalty under ERISA or material
 
tax under the Code.
 
Each Loan Party shall furnish
 
to
Banks upon
 
any Bank’s
 
request such
 
additional information
 
about any
 
Plan or
 
other employee
 
benefit
 
plan as
may be reasonably requested by such Bank.
 
The Plans shall be operated in such a manner that none of
 
the Loan
Parties
 
will
 
incur
 
any
 
material
 
tax
 
liability
 
under
 
Section
 
4980B
 
of
 
the
 
Code
 
or
 
any
 
material
 
liability
 
to
 
any
qualified beneficiary as defined in Section 4980B.
SECTION 5.17
Insurance.
 
Notwithstanding
 
any
 
provision
 
in
 
any
 
other
 
Loan
 
Documents
requiring specified types or amounts of insurance, each Loan
 
Party will maintain, and will cause each Subsidiary
of
 
a
 
Loan
 
Party
 
to
 
maintain
 
(either
 
in
 
the
 
name
 
of
 
such
 
Loan
 
Party
 
or
 
in
 
such
 
Subsidiary’s
 
own
 
name),
 
with
financially sound
 
and reputable
 
insurance companies,
 
worker’s compensation
 
insurance, liability insurance
 
and
insurance on its
 
properties, assets
 
and business, now
 
owned or hereafter
 
acquired, against
 
such casualties,
 
risks
and
 
contingencies,
 
and
 
in
 
such
 
types
 
and
 
amounts
 
as
 
shall
 
be
 
selected
 
by
 
management
 
of
 
Borrower
 
in
 
its
reasonable discretion and
 
as are customarily
 
maintained by
 
prudent companies
 
similarly situated
 
in Borrower’s
industries.
 
 
 
 
 
 
 
 
 
SECTION 5.18
Change
 
in
 
Fiscal
 
Year
 
.
 
Each
 
Loan
 
Party
 
will
 
not
 
change
 
its
 
Fiscal
 
Year
without the consent of the Required Banks.
SECTION 5.19
Maintenance
 
of
 
Property.
 
Each
 
Loan
 
Party
 
will,
 
and
 
will
 
cause
 
each
Subsidiary to, keep
 
and maintain all
 
property material to
 
the conduct of
 
its business
 
in good working
 
order and
condition, except (i) ordinary wear and tear and obsolescence and (ii) the occurrence of casualty events.
SECTION 5.20
Intentionally Omitted.
 
SECTION 5.21
Environmental Matters.
 
No Loan Party or
 
any Subsidiary of
 
a Loan Party
will,
 
nor
 
will
 
any
 
Loan
 
Party
 
permit
 
any
 
Third
 
Party
 
to,
 
use,
 
produce,
 
manufacture,
 
process,
 
treat,
 
recycle,
generate,
 
store,
 
dispose
 
of,
 
manage
 
at,
 
or
 
otherwise
 
handle
 
or
 
ship
 
or
 
transport
 
to
 
or
 
from
 
the
 
Properties
 
any
Hazardous Materials except for
 
Hazardous Materials used, produced,
 
manufactured, processed, treated, recycled,
generated,
 
stored,
 
disposed,
 
managed
 
or
 
otherwise
 
handled
 
in
 
the
 
ordinary
 
course
 
of
 
business
 
and
 
in
 
material
compliance with all applicable Environmental Requirements.
SECTION 5.22
Intentionally Omitted.
SECTION 5.23
Intentionally Omitted.
SECTION 5.24
Transactions with
 
Affiliates.
 
No Loan Party nor
 
any Subsidiary of a
 
Loan
Party shall
 
enter into,
 
or be
 
a party
 
to, any
 
transaction with
 
any Affiliate of
 
a Loan
 
Party or
 
such Subsidiary
 
(which
Affiliate
 
is not
 
a
 
Loan Party
 
or
 
a Subsidiary
 
of
 
a
 
Loan Party),
 
except as
 
permitted by
 
law
 
and in
 
the ordinary
course of business and pursuant to
 
reasonable terms which are fully disclosed
 
to the Agent and the Banks
 
and are
no
 
less
 
favorable
 
to
 
the
 
Loan
 
Party
 
or
 
such
 
Subsidiary
 
than
 
would
 
be
 
obtained
 
in
 
a
 
comparable
 
arm’s
 
length
transaction with a
 
Person which is
 
not an Affiliate;
 
provided, however, that nothing
 
contained in this
 
Section shall
prohibit:
 
(A)
 
transactions
 
under
 
incentive
 
compensation
 
plans,
 
stock
 
option
 
plans
 
and
 
other
 
employee
 
benefit
plans, and loans and advances from any Loan Party or any subsidiary of a Loan Party to its officers, in each case
that have been approved by
 
the board of directors, or a
 
committee thereof, of any Loan
 
Party or any subsidiary of
a Loan Party,
 
and subject to any other
 
applicable limitations and restrictions set
 
forth in this Agreement, (B) the
payment
 
by
 
any
 
Loan
 
Party
 
of
 
reasonable
 
and
 
customary
 
fees
 
to
 
members
 
of
 
its
 
board
 
of
 
directors,
 
and
 
(C)
transactions among
 
Borrower
 
and its
 
Subsidiaries
 
(provided that
 
such
 
transactions
 
shall remain
 
subject
 
to any
other applicable limitations and restrictions set forth in this Agreement).
SECTION 5.25
No
 
Restrictive
 
Agreement.
 
No
 
Loan Party
 
will,
 
nor
 
will
 
any
 
Loan Party
permit any
 
of its Subsidiaries
 
to, enter into,
 
after the date
 
of this Agreement,
 
any indenture, agreement,
 
instrument
or
 
other
 
arrangement
 
that,
 
directly
 
or
 
indirectly,
 
prohibits
 
or
 
restrains,
 
or
 
has
 
the
 
effect
 
of
 
prohibiting
 
or
restraining,
 
or
 
imposes
 
materially
 
adverse
 
conditions
 
upon,
 
any of
 
the
 
following
 
by a
 
Loan
 
Party
 
or
 
any such
Subsidiary: (a)
 
the declaration
 
or payment
 
of Restricted
 
Payments or
 
other distributions
 
in respect
 
of Capital
 
Stock
of the
 
Loan Party
 
or any
 
Subsidiary or
 
(b) the
 
prompt payment
 
and performance
 
of the
 
Obligations when
 
due,
including, without limitation, the amounts due under the Notes, according
 
to the terms of this Agreement and the
other Loan Documents.
SECTION 5.26
Additional
 
Domestic
 
Subsidiaries.
 
Borrower
 
will
 
cause
 
each
 
Person
 
that
becomes a Wholly Owned Domestic Subsidiary after the Closing Date to promptly, but no later than twenty (20)
Domestic
 
Business
 
Days
 
(as
 
such
 
date
 
may
 
be
 
extended
 
by
 
the
 
Agent)
 
after
 
the
 
date
 
on
 
which
 
such
 
Person
becomes a Wholly Owned
 
Domestic Subsidiary (other
 
than any Wholly
 
Owned Domestic Subsidiary that
 
owns
any portion
 
of the
 
Fort Mill
 
Land), to
 
become a
 
Guarantor by
 
way of
 
execution of
 
a Joinder
 
Agreement, in
 
the
form attached
 
hereto as
 
Exhibit G.
 
Borrower shall
 
also cause
 
the items
 
specified in
 
Section 3.01(e)
 
to be
 
delivered
to the
 
Agent concurrently
 
with the
 
instrument referred
 
to above,
 
modified appropriately
 
to refer
 
to such
 
instrument
and such Subsidiary.
 
 
 
 
SECTION 5.27
Additional Debt.
 
No Loan
 
Party or
 
Subsidiary of a
 
Loan Party
 
shall directly
or indirectly issue, assume, create,
 
incur or suffer to exist any
 
Debt or the equivalent (including
 
obligations under
Capital Leases), except for:
 
(a)
the Obligations
 
owed to
 
the Agent
 
and
 
Banks under
 
this
 
Agreement and
 
the
 
other
 
Loan
Documents;
(b)
the
 
Debt
 
existing
 
and
 
outstanding
 
on
 
the
 
Closing
 
Date
 
of
 
the
 
Loan
 
Parties
 
set
 
forth
 
in
Schedule 5.27 hereto (and renewals, refinancings and extensions thereof so
 
long as the principal amount of such
Debt is not increased);
(c)
aggregate Debt of
 
the Loan Parties
 
and their Subsidiaries
 
secured by Liens
 
permitted under
Section 5.11(h);
(d)
Debt
 
assumed
 
in
 
connection
 
with
 
any
 
merger,
 
acquisition
 
or
 
consolidation
 
permitted
pursuant to Section 5.14 or 5.04 so
 
long as (i) such assumed Debt
 
does not exceed in the aggregate
 
$20,000,000
and (ii) any such Debt exceeding $1,000,000 ranks no higher than pari passu with respect to the Obligations;
(e)
Debt permitted pursuant to Section 5.10;
(f)
endorsement of instruments
 
or items of
 
payment for deposit
 
to the general
 
account of the
Loan Parties or for delivery to Banks on account of the Obligations of Loan Parties;
 
(g)
Guarantees of
 
Debt permitted
 
by this
 
Section 5.27
 
and other
 
Guarantees in
 
an aggregate
amount of no more than $15,000,000;
(h)
obligations
 
(contingent
 
or
 
otherwise)
 
of
 
Borrower
 
or
 
any
 
Guarantor
 
existing
 
or
 
arising
under
 
any
 
Hedge
 
Agreement;
 
provided
 
that
 
such
 
obligations
 
are
 
(or
 
were)
 
entered
 
into
 
by
 
such
 
Person
 
in
 
the
ordinary course
 
of business
 
for the
 
purpose
 
of directly
 
mitigating risks
 
associated with
 
interest rate
 
or foreign
currency fluctuations and not for purposes of speculation;
(i)
the incurrence by
 
Borrower or any
 
Subsidiary of Debt
 
in respect of
 
workers’ compensation
claims, self-insurance
 
obligations, bankers’
 
acceptances, performance
 
and surety
 
bonds and
 
similar obligations
in the ordinary course of business;
(j)
the incurrence by
 
Borrower or any
 
Subsidiary of
 
Debt owing under
 
overdraft facilities
 
in
connection with cash management arrangements and other bank product obligations;
(k)
the
 
incurrence
 
by
 
Borrower
 
or
 
any
 
Subsidiary
 
of
 
Debt
 
in
 
respect
 
of
 
Subordinated
Debentures so long as no Default or Event of Default results from the incurrence thereof;
(l)
the incurrence by Borrower or any Subsidiary of Debt in respect of store leases;
(m)
other
 
Debt
 
for
 
borrowed
 
money
 
not
 
otherwise
 
permitted
 
under
 
this
 
Section
 
5.27,
 
the
aggregate outstanding principal amount of which shall not, at any time, exceed $25,000,000; and
(n)
reimbursement obligations
 
in
 
respect
 
of
 
letters
 
of
 
credit
 
to
 
provide
 
security
 
for
 
customs
bonds or
 
to
 
purchase inventory
 
in the
 
ordinary course
 
of business,
 
provided that
 
the stated
 
amount of
 
all such
letters of credit shall not exceed $35,000,000 in the aggregate.
SECTION 5.28
Intentionally Omitted.
SECTION 5.29
Intentionally Omitted.
 
 
 
 
SECTION 5.30
Intentionally Omitted.
SECTION 5.31
Compliance
 
with
 
Anti-Corruption
 
Laws
 
and
 
Sanctions.
 
Borrower
 
will
maintain in effect
 
and enforce policies
 
and procedures designed
 
to promote and
 
achieve compliance by
 
Borrower,
its Subsidiaries and their respective directors, officers, employees and agents with
 
all applicable Anti-Corruption
Laws, Anti-Money Laundering Laws
 
and Sanctions.
 
Borrower and its Subsidiaries
 
shall comply at all
 
times with
all applicable Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions.
SECTION 5.32
Capital Expenditures.
 
Capital Expenditures will not at any time
 
exceed an
aggregate amount of
 
$50,000,000 during
 
any Fiscal
 
Year,
 
commencing with
 
the Fiscal Year
 
ended January 28,
2022.
 
If Borrower and the Subsidiaries do not utilize the entire
 
amount of Capital Expenditures permitted in any
Fiscal Year,
 
Borrower and the Subsidiaries
 
may carry forward to
 
the immediately succeeding Fiscal Year 50% of
such
 
unutilized
 
amount
 
of
 
Capital
 
Expenditures
 
(with
 
Capital
 
Expenditures
 
made
 
by
 
Borrower
 
and
 
the
Subsidiaries in such succeeding Fiscal Year
 
applied first to such carried forward amount).
ARTICLE VI
DEFAULTS
SECTION 6.01 Events
 
of Default.
 
If one or
 
more of the
 
following events
 
(“Events of Default”)
shall have occurred and be continuing:
(a)
Borrower shall
 
fail to
 
pay when
 
due
 
any principal
 
of any
 
Revolving
 
Credit Advance,
 
or
shall fail to pay when due any reimbursement for any amount
 
disbursed under a Letter of Credit within three (3)
Domestic
 
Business
 
Days
 
after
 
such
 
reimbursement
 
shall
 
become
 
due,
 
or
 
shall
 
fail
 
to
 
pay
 
any
 
interest
 
on
 
any
Revolving Credit Advance within
 
five Domestic Business Days
 
after such interest shall
 
become due, or any
 
Loan
Party shall fail
 
to pay any
 
fee or other
 
amount payable hereunder
 
within ten (10)
 
Domestic Business Days
 
after
such fee or other amount becomes due; or
(b)
any Loan
 
Party shall
 
fail to
 
observe, perform
 
or comply
 
with any
 
covenant contained
 
in
Sections 5.03 to 5.15, inclusive, or Section 5.18 or 5.27; or
(c)
any Loan
 
Party shall
 
fail to
 
observe or
 
perform any
 
covenant or
 
agreement contained
 
or
incorporated by
 
reference in
 
this Agreement
 
(other than
 
those covered
 
by clause
 
(a) or
 
(b) above
 
or clause
 
(q)
below) for
 
thirty days
 
after the
 
earlier of
 
(i) the
 
first day
 
on which
 
any Designated
 
Officer of
 
a Loan
 
Party has
knowledge of
 
such failure
 
or (ii)
 
written notice
 
thereof has
 
been given
 
to a
 
Designated Officer
 
of Borrower
 
by
the Agent at the request of any Bank; or
(d)
any representation, warranty, certification or statement made or deemed
 
made by the Loan
Parties
 
in
 
Article
 
IV
 
of
 
this
 
Agreement
 
or
 
in
 
any
 
financial
 
statement,
 
material
 
certificate
 
or
 
other
 
material
document delivered pursuant to this Agreement
 
shall prove to have been incorrect
 
or misleading in any material
respect when made (or deemed made); or
(e)
any Loan Party
 
or any Subsidiary
 
of a Loan
 
Party shall fail to
 
make any payment
 
in respect
of Debt outstanding in an aggregate principal amount equal to or greater
 
than $10,000,000 (other than the Notes)
when due or within any applicable grace period; or
(f)
any event or condition shall occur which
 
results in the acceleration of the maturity
 
of Debt
outstanding
 
in
 
an
 
aggregate
 
principal
 
amount
 
equal
 
to
 
or
 
greater
 
than
 
$10,000,000
 
of
 
any
 
Loan
 
Party
 
or
 
any
Subsidiary of a Loan Party (including without
 
limitation any mandatory prepayment or purchase
 
of such Debt by
any Loan
 
Party (or
 
its designee)
 
or such
 
Subsidiary of
 
a Loan
 
Party (or
 
its designee)
 
prior to
 
the scheduled
 
maturity
thereof), or enables (or, with the giving of
 
notice or lapse of time or
 
both, would enable) the holders of
 
such Debt
or commitment or
 
any Person acting
 
on such holders’
 
behalf to accelerate
 
the maturity thereof
 
or terminate any
such commitment (including without limitation any required mandatory prepayment or purchase
 
thereof prior to
the scheduled maturity
 
thereof), without
 
regard to whether
 
such holders or
 
other Person shall
 
have exercised or
waived their right to do so; or
(g)
any Loan
 
Party or
 
any Subsidiary
 
of a
 
Loan Party
 
(except for
 
Immaterial Subsidiaries)
 
shall
commence a voluntary case or other
 
proceeding seeking liquidation, reorganization or other relief with
 
respect to
itself or its debts under any bankruptcy,
 
insolvency or other similar law now or hereafter in
 
effect or seeking the
appointment of a trustee, receiver, liquidator,
 
custodian or other similar official of it
 
or any substantial pan of its
property, or shall
 
consent to any such relief or to the
 
appointment of or taking possession by any such
 
official in
an involuntary case or other proceeding
 
commenced against it, or shall make
 
a general assignment for the
 
benefit
of creditors, or shall
 
fail generally,
 
or shall admit in
 
writing its inability,
 
to pay its debts
 
as they become due, or
shall take any corporate action to authorize any of the foregoing; or
(h)
an involuntary case
 
or other proceeding
 
shall be commenced
 
against any Loan
 
Party or any
Subsidiary of a
 
Loan Party
 
(except for Immaterial
 
Subsidiaries)
 
seeking liquidation, reorganization
 
or other
 
relief
with respect to it or its debts
 
under any bankruptcy,
 
insolvency or other similar law now
 
or hereafter in effect or
seeking the
 
appointment of a
 
trustee, receiver, liquidator, custodian or
 
other similar official
 
of it or
 
any substantial
part of its
 
property,
 
and such involuntary
 
case or other
 
proceeding shall remain
 
undismissed and unstayed
 
for a
period of 60 days; or
 
an order for relief shall
 
be entered against any Loan
 
Party or any Subsidiary of a Loan
 
Party
(except for Immaterial Subsidiaries) under the federal bankruptcy laws as now or hereafter in effect; or
(i)
any
 
Loan Party
 
or
 
any
 
member
 
of
 
the
 
Controlled
 
Group
 
shall
 
fail
 
to
 
pay
 
when
 
due
 
any
material amount which it shall
 
have become liable to pay to
 
the PBGC or to a
 
Plan under Title
 
IV of ERISA; or
notice of
 
intent to
 
terminate a
 
Plan or
 
Plans shall
 
be filed
 
under Title IV
 
of ERISA
 
by any
 
Loan Party, any
 
member
of the Controlled Group, any plan administrator or any
 
combination of the foregoing; or the PBGC shall institute
proceedings under
 
Title
 
IV of
 
ERISA to
 
terminate or
 
to cause
 
a trustee
 
to be
 
appointed to
 
administer any
 
such
Plan or Plans or
 
a proceeding shall be instituted
 
by a fiduciary of
 
any such Plan or
 
Plans to enforce Section
 
515
or
 
4219(c)(5)
 
of
 
ERISA
 
and
 
such
 
proceeding
 
shall
 
not
 
have
 
been
 
dismissed
 
within
 
30
 
days
 
thereafter;
 
or
 
a
condition shall exist by
 
reason of which
 
the PBGC would be
 
entitled to obtain a
 
decree adjudicating that any
 
such
Plan or Plans must be terminated; or
(j)
one or more
 
judgments or orders for
 
the payment of money
 
involving an aggregate amount
equal to or greater than $10,000,000 shall be
 
rendered against any Loan Party or any Subsidiary
 
of a Loan Party
and such judgment or order shall not be paid, covered by a reputable and solvent insurance company,
 
dismissed,
bonded, vacated, stayed or discharged for a period of 30 days; or
(k)
a notice of
 
lien, levy or assessment
 
is filed of record
 
(other than with respect
 
to a Permitted
Lien)
 
on
 
all
 
or
 
any portion
 
of
 
the
 
assets
 
of
 
any
 
Borrower
 
by
 
the
 
United
 
States,
 
or
 
any department,
 
agency or
instrumentality
 
thereof,
 
or
 
by
 
any
 
state,
 
county,
 
municipal
 
or
 
other
 
governmental
 
agency,
 
including,
 
without
limitation, the Pension Benefit Guaranty Corporation,
 
or if any taxes owing at
 
the time or times hereafter
 
by the
United States
 
becomes a
 
Lien or
 
encumbrance upon
 
any asset
 
of any
 
Loan Party
 
or any
 
Subsidiary (other
 
than
with respect
 
to Permitted
 
Liens) and the
 
same is
 
not dismissed,
 
released or
 
discharged within
 
30 days
 
after the
same becomes a lien or encumbrance or, in the case of ad valorem
 
taxes, prior to the last day when payment may
be made without penalty; or
(l)
(i) any Person or
 
two or more Persons
 
acting in concert (other
 
than Xxxx Xxxx) shall
 
have
acquired beneficial ownership (within the meaning of Rule 13d-3 of
 
the SEC under the Securities Exchange Act
of 1934)
 
of 50%
 
or more
 
of the
 
outstanding shares
 
of the
 
voting stock
 
of Borrower;
 
or (ii)
 
as of
 
any date
 
a majority
of the Board of Directors
 
of Borrower consists of individuals
 
who were not either (A)
 
directors of Borrower as of
the
 
corresponding
 
date
 
of
 
the
 
previous
 
year,
 
(B)
 
approved
 
or
 
nominated
 
to
 
become
 
directors
 
by
 
the
 
Board
 
of
 
 
 
 
Directors of
 
Borrower of
 
which a
 
majority consisted
 
of individuals
 
described in
 
clause (A), or
 
(C) approved
 
or
nominated to
 
become directors
 
by the
 
Board of
 
Directors of
 
Borrower of
 
which a
 
majority consisted
 
of individuals
described in clause (A) and individuals described in clause (B); or
(m)
any
 
Loan
 
Party
 
is
 
enjoined,
 
restrained
 
or
 
in
 
any
 
way
 
prevented
 
by
 
court
 
order
 
from
conducting all or any material part of its business affairs and such action has a Material Adverse Effect;
(n)
[reserved];
 
(o)
[reserved];
(p)
[reserved];
 
or
(q)
(i) any
 
of the
 
Guarantors shall
 
fail to
 
pay when
 
due any
 
Guaranteed Obligations
 
or shall
fail to pay any fee or other amount payable hereunder when due; or (ii) any Guarantor shall disaffirm or deny its
obligations under Article X,
then,
 
and
 
in
 
every
 
such
 
event,
 
the
 
Agent
 
shall
 
(i)
 
if
 
requested
 
by
 
the
 
Required
 
Banks,
 
by
 
notice
 
to
 
Borrower
terminate the
 
Revolving Credit
 
Commitments and
 
they shall
 
thereupon terminate,
 
(ii) if
 
requested by
 
the Required
Banks, by notice to the Issuing Bank, instruct the Issuing Bank
 
to declare an Event of Default under the Letter of
Credit Agreements,
 
and (iii)
 
if requested
 
by the
 
Required Banks,
 
by notice
 
to Borrower
 
declare the
 
Notes (together
with
 
accrued
 
interest
 
thereon),
 
the
 
Revolving
 
Credit
 
Advances,
 
and
 
all
 
other
 
amounts
 
payable
 
hereunder
 
and
under the other Loan Documents to be,
 
and the Notes (together with all accrued interest
 
thereon), the Revolving
Credit Advances, and all other amounts payable hereunder and under the other Loan Documents shall thereupon
become, immediately
 
due and
 
payable without
 
presentment, demand,
 
protest or
 
other notice
 
of any
 
kind, all
 
of
which are hereby waived by the Loan Parties; provided that if any Event
 
of Default specified in clause (g) or (h)
above occurs with respect to any Loan Party, without any notice to any Loan Party or any other act by the Agent
or the
 
Banks, the
 
Revolving Credit Commitments
 
shall thereupon
 
automatically terminate and
 
the Notes (together
with accrued
 
interest thereon)
 
and all
 
other amounts payable
 
hereunder and under
 
the other Loan
 
Documents shall
automatically become immediately due and payable without presentment, demand, protest or other notice of any
kind, all of
 
which are hereby
 
waived by the
 
Loan Parties.
 
Notwithstanding the foregoing,
 
the Agent
 
shall have
available to it
 
all other remedies
 
at law or
 
equity,
 
and shall exercise
 
any one or
 
all of them
 
at the request
 
of the
Required
 
Banks.
 
Notwithstanding
 
the
 
foregoing,
 
the
 
Agent
 
shall
 
have
 
available
 
to
 
it
 
all
 
rights
 
and
 
remedies
provided under the
 
Loan Documents and
 
in addition
 
thereto, all other
 
rights and remedies
 
at law or
 
equity,
 
and
the Agent shall exercise any one or all of them at the request of the Required Banks.
SECTION 6.02
Notice of Default.
 
The Agent shall give notice to Borrower of any Default
under Section
 
6.01(c) promptly
 
upon being
 
requested to
 
do so
 
by
 
any
 
Bank and
 
shall
 
thereupon notify
 
all the
Banks thereof.
SECTION 6.03
Cash Cover.
 
If any Event
 
of Default shall
 
have occurred and
 
be continuing,
Borrower shall,
 
if requested
 
by the
 
Agent, pay
 
to the
 
Agent, for
 
the benefit
 
of the
 
Banks an
 
amount in
 
immediately
available funds (which funds shall be held as collateral pursuant to arrangements satisfactory
 
to the Agent) equal
to the
 
aggregate Undrawn
 
Amounts, provided
 
that, if
 
any Event
 
of Default
 
specified in
 
clause (g)
 
or (h)
 
above
occurs, Borrower shall be obligated
 
to pay such amount to the
 
Agent forthwith without any
 
notice to Borrower or
any other act by the Agent.
SECTION 6.04
Allocation of
 
Proceeds.
 
If an
 
Event of
 
Default has
 
occurred and
 
not been
waived, and the maturity
 
of the Notes has been
 
accelerated pursuant to Article
 
VI hereof, all payments
 
received
by the Agent hereunder, in respect
 
of any principal of
 
or interest on the
 
Obligations or any other
 
amounts payable
by Borrower or any other Loan Party hereunder, shall be applied by the Agent in the following order:
 
 
(a)
the
 
reasonable
 
expenses
 
incurred
 
in
 
connection
 
with
 
retaking,
 
holding,
 
preserving,
processing, maintaining
 
or preparing
 
for sale,
 
lease or
 
other disposition
 
of, any
 
collateral, including
 
reasonable
attorney’s fees and legal expenses pertaining thereto;
(b)
amounts due
 
to the
 
Banks, Agent
 
and the
 
Issuing Bank
 
pursuant to
 
Sections 2.07(a),
 
2.07(b)
and 9.03(a);
(c)
payments of interest
 
on Revolving Credit
 
Advances and Letter
 
of Credit
 
Advances, to be
applied for the ratable benefit of the Banks;
(d)
payments of principal of Revolving Credit Advances and Letter of Credit Advances, to be
applied for the ratable benefit of the Banks;
(e)
payments of cash
 
amounts to the Agent
 
in respect of outstanding
 
Letters of Credit
 
pursuant
to Section 6.03;
(f)
amounts due
 
to the
 
Issuing Bank,
 
the Agent
 
and the
 
Banks pursuant
 
to Sections
 
9.03(b)
and (c);
(g)
payments of all other amounts due under any
 
of the Loan Documents, if any, to be applied
for the ratable benefit of the Banks;
(h)
any surplus remaining
 
after application as provided
 
for herein, to
 
Borrower or otherwise as
may be required by applicable law.
ARTICLE VII
THE AGENT
SECTION 7.01
Appointment and Authority.
 
(a)
Each
 
of
 
the
 
Banks
 
and
 
each
 
Issuing
 
Bank
 
hereby
 
irrevocably
 
appoints,
 
designates
 
and
authorizes
 
Xxxxx
 
Fargo
 
to
 
act
 
on
 
its
 
behalf
 
as
 
the
 
Agent
 
hereunder
 
and
 
under
 
the
 
other
 
Loan
 
Documents
 
and
authorizes the Agent to take such actions on its behalf and to exercise
 
such powers as are delegated to the Agent
by the terms
 
hereof or thereof,
 
together with such
 
actions and powers
 
as are reasonably
 
incidental thereto.
 
Except
as provided
 
in Sections
 
7.6 the
 
provisions of
 
this Article
 
are solely
 
for the
 
benefit of
 
the Agent,
 
the Banks,
 
the
Issuing Banks
 
and their
 
respective Related
 
Parties, and
 
neither Borrower
 
nor any
 
Subsidiary thereof
 
shall have
rights as a third-party beneficiary of any of such provisions;
(b)
It is
 
understood and
 
agreed that
 
the use
 
of the
 
term “agent”
 
herein or
 
in any
 
other
 
Loan
Documents (or
 
any other
 
similar term)
 
with reference
 
to the
 
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
 
Bank.
 
The Person serving
 
as the Agent
 
hereunder shall have
 
the
same rights and powers in its capacity as a Bank as any other Bank
 
and may exercise the same as though it were
not the Agent
 
and the term
 
“Bank”
 
or “Banks” shall,
 
unless otherwise expressly
 
indicated or unless
 
the context
otherwise requires, include
 
the Person serving as
 
the 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 banking, trust,
 
financial advisory,
 
underwriting,
capital markets
 
or
 
other
 
business with
 
Borrower or
 
any Subsidiary
 
or other
 
Affiliate
 
thereof as
 
if
 
such Person
 
 
were not
 
the Agent
 
hereunder and
 
without any
 
duty to
 
account therefor
 
to the
 
Banks or
 
to provide
 
notice to
 
or
consent of the Banks
 
with respect thereto.
SECTION 7.03
Exculpatory Provisions.
(a)
The
 
Agent,
 
and
 
their
 
respective
 
Related
 
Parties
 
shall
 
not
 
have
 
any
 
duties
 
or
 
obligations
except those expressly set forth herein and in the
 
other Loan Documents, and its duties hereunder and thereunder
shall be administrative in
 
nature.
 
Without limiting the generality of
 
the foregoing, the Agent,
 
and their respective
Related Parties:
(i)
shall not
 
be subject
 
to any
 
agency, trust, fiduciary
 
or other
 
implied duties,
 
regardless
of whether a Default or Event of Default has occurred and is continuing;
 
(ii)
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
 
that
 
the
 
Agent
 
is
 
required to
 
exercise
 
as
 
directed in
 
writing by
 
the
 
Required
 
Banks (or
 
such
 
other
number or
 
percentage of
 
the Banks
 
as shall
 
be expressly
 
provided for
 
herein or
 
in the
 
other Loan
 
Documents),
provided that the
 
Agent shall not be
 
required to take any action
 
that, in its opinion
 
or the opinion of
 
its counsel,
may expose the 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 Bank in
 
violation of any Debtor
Relief Law;
 
(iii)
shall not, have
 
any duty to
 
disclose, and shall
 
not be liable
 
for the failure
 
to disclose
to
 
any
 
Bank,
 
any
 
Issuing
 
Bank
 
or
 
any
 
other
 
Person,
 
any
 
credit
 
or
 
other
 
information
 
concerning
 
the
 
business,
prospects, operations, properties, assets,
 
financial or other condition or
 
creditworthiness of Borrower or
 
any of its
respective Subsidiaries
 
or Affiliates
 
that is
 
communicated to,
 
obtained by
 
or otherwise
 
in the
 
possession of
 
the
Person serving as
 
the Agent,
 
or their respective
 
Related Parties in
 
any capacity,
 
except for notices,
 
reports and
other documents that are required to
 
be furnished by the Agent to
 
the Banks pursuant to the express
 
provisions of
this Agreement; and
 
(iv)
shall not
 
be required
 
to account
 
to any
 
Bank or
 
any Issuing
 
Bank for
 
any sum
 
or
profit received by the Agent for its own account.
(b)
The Agent,
 
and their respective Related Parties shall
 
not be liable for any action
 
taken or
not
 
taken
 
by
 
it
 
under
 
or
 
in
 
connection
 
with
 
this
 
Agreement
 
or
 
any
 
other
 
Loan
 
Document
 
or
 
the
 
transactions
contemplated hereby or
 
thereby (i) with
 
the consent or
 
at the request
 
of the Required
 
Banks (or
 
such other number
or percentage of
 
the Banks
 
as shall be
 
necessary,
 
or as the
 
Agent shall believe
 
in good
 
faith shall be
 
necessary,
under the circumstances as provided in Section 9.05) or (ii)
 
in the absence of its own gross negligence or willful
misconduct
 
as
 
determined by
 
a
 
court
 
of
 
competent
 
jurisdiction
 
by final
 
non-appealable
 
judgment.
 
The
 
Agent
shall be deemed
 
not to have knowledge
 
of any Default or
 
Event of Default
 
unless and until notice
 
describing such
Default
 
or
 
Event
 
of
 
Default
 
and
 
indicating
 
that
 
such
 
notice
 
is
 
a
 
“Notice
 
of
 
Default”
 
is
 
given
 
to
 
the
 
Agent
 
by
Borrower,
 
a Bank or an Issuing Bank.
 
(c)
The Agent,
 
and their
 
respective Related
 
Parties shall
 
not be
 
responsible for
 
or have
 
any
duty or obligations
 
to any Bank
 
or Participant or
 
any other Person
 
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 or
 
Event of 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 Agent
 
or (vii) the utilization
 
of any
 
Issuing Bank’s Letter
of Credit Commitment (it being understood and agreed that each Issuing Bank shall monitor compliance with its
own Letter of Credit Commitment without any further action by the Agent).
SECTION 7.04
Reliance by
 
the Agent.
 
The Agent
 
shall be
 
entitled to
 
rely upon,
 
shall be
fully protected
 
in relying and
 
shall not
 
incur any
 
liability for
 
relying upon, any
 
notice, request,
 
certificate, consent,
communication, 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 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 be fully
 
protected in relying
and shall not incur any liability for
 
relying thereon.
 
In determining compliance with any condition hereunder to
the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must
be
 
fulfilled
 
to
 
the
 
satisfaction
 
of
 
a
 
Bank
 
or
 
an
 
Issuing
 
Bank,
 
the
 
Agent
 
may
 
presume
 
that
 
such
 
condition
 
is
satisfactory to such Bank
 
or such Issuing Bank
 
unless the Agent shall
 
have received notice to
 
the contrary from
such Bank or such
 
Issuing Bank prior to
 
the making of such
 
Loan or the issuance
 
of such Letter
 
of Credit.
 
The
Agent may
 
consult with
 
legal counsel
 
(who may
 
be counsel
 
for 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.
 
Each
 
Bank or
 
Issuing Bank
 
that has
 
signed
 
this
 
Agreement or
 
a
signature page to an Assignment and Acceptance or any other Loan Document pursuant to which it is to become
a Bank or
 
Issuing Bank hereunder
 
shall be deemed
 
to have consented
 
to, approved and
 
accepted and shall
 
deemed
satisfied with
 
each document
 
or other
 
matter required
 
thereunder to
 
be consented
 
to, approved
 
or
 
accepted by
such Bank or Issuing Bank or that is to be acceptable or satisfactory to such Bank or Issuing Bank.
SECTION 7.05
Delegation of Duties.
 
The 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
 
Agent.
 
The 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 Agent
 
and any
 
such sub
 
-agent, and
shall
 
apply
 
to
 
their
 
respective
 
activities
 
in
 
connection
 
with
 
the
 
syndication
 
under
 
this
 
Agreement
 
as
 
well
 
as
activities as Agent.
 
The Agent shall
 
not be responsible
 
for the negligence
 
or misconduct of
 
any sub-agents except
to the
 
extent that
 
a court
 
of competent
 
jurisdiction
 
determines in
 
a final
 
and non-appealable
 
judgment that
 
the
Agent acted with gross negligence or willful misconduct in the selection of such sub agents.
SECTION 7.06
Resignation of Agent.
 
(a)
The Agent may
 
at any time
 
give notice of
 
its resignation to
 
the Banks,
 
the Issuing Banks
and
 
Borrower.
 
Upon
 
receipt
 
of
 
any
 
such
 
notice
 
of
 
resignation,
 
the
 
Required
 
Banks
 
shall
 
have
 
the
 
right,
 
in
consultation
 
with
 
Borrower,
 
to
 
appoint
 
a
 
successor,
 
which
 
shall
 
be
 
a
 
bank
 
or
 
financial
 
institution
 
reasonably
experienced in serving
 
as administrative
 
agent on
 
syndicated bank facilities
 
with an office
 
in the United
 
States,
or an Affiliate of
 
any such bank or financial
 
institution with an office
 
in the United States.
 
If no such successor
shall have
 
been so
 
appointed by
 
the Required
 
Banks and
 
shall have
 
accepted such
 
appointment within
 
30 days
after
 
the
 
retiring
 
Agent
 
gives
 
notice
 
of
 
its
 
resignation
 
(or
 
such
 
earlier
 
day
 
as
 
shall
 
be
 
agreed
 
by
 
the
 
Required
Banks)
 
(the “Resignation Effective Date”), then the
 
retiring Agent may (but shall not be obligated
 
to), on behalf
of the
 
Banks and
 
the Issuing
 
Banks,
 
appoint a
 
successor Agent
 
meeting the
 
qualifications set
 
forth above.
 
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 Agent is a Defaulting
 
Bank pursuant to clause (d) of the definition
thereof, the Required Banks may, to the extent permitted by applicable law, by notice in writing to Borrower and
such Person,
 
remove such
 
Person as
 
Agent and,
 
in consultation
 
with Borrower,
 
appoint a
 
successor.
 
If no
 
such
successor shall have been so appointed by the Required
 
Banks and shall have accepted such appointment within
 
30 days (or such earlier
 
day as shall be agreed
 
by the Required Banks) (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), (i) the
 
retiring or
 
removed 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 Agent on behalf of
the Banks or the
 
Issuing Banks under any of
 
the Loan Documents, the
 
retiring or removed Agent
 
shall continue
to hold
 
such collateral
 
security until
 
such time
 
as a
 
successor Agent
 
is appointed)
 
and (ii)
 
except for
 
any indemnity
payments
 
or
 
other
 
amounts
 
then
 
owed
 
to
 
the
 
retiring
 
or
 
removed
 
Agent,
 
all
 
payments,
 
communications
 
and
determinations provided
 
to be
 
made by,
 
to or
 
through the
 
Agent shall
 
instead be
 
made by
 
or to
 
each Bank
 
and
each Issuing Bank directly, until such time, if any,
 
as the Required Banks appoint a successor Agent as provided
for above.
 
Upon the acceptance of a
 
successor’s appointment as Agent
 
hereunder, such successor
 
shall succeed
to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Agent (other
than
 
any
 
rights
 
to
 
indemnity
 
payments
 
or
 
other
 
amounts
 
owed
 
to
 
the
 
retiring
 
or
 
removed
 
Agent
 
as
 
of
 
the
Resignation Effective Date
 
or the Removal
 
Effective Date, as
 
applicable), and the
 
retiring or removed
 
Agent shall
be
 
discharged
 
from
 
all
 
of
 
its
 
duties
 
and
 
obligations
 
hereunder
 
or
 
under
 
the
 
other
 
Loan
 
Documents.
 
The
 
fees
payable by Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise
agreed
 
between
 
Borrower
 
and
 
such
 
successor.
 
After
 
the
 
retiring
 
or
 
removed
 
Agent’s
 
resignation
 
or
 
removal
hereunder
 
and
 
under
 
the
 
other
 
Loan
 
Documents,
 
the
 
provisions
 
of
 
this
 
Article
 
shall
 
continue
 
in
 
effect
 
for
 
the
benefit of
 
such retiring
 
or removed
 
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 or removed Agent was
 
acting as Agent or
relating to
 
its duties
 
as Agent
 
that are
 
carried out
 
following its
 
retirement or
 
removal, including,
 
without limitation,
any actions taken in connection with the transfer of agency to a replacement or successor Agent.
(d)
Any resignation by, or removal
 
of, Xxxxx Fargo as Agent pursuant
 
to this Section shall
 
also
constitute
 
its
 
resignation
 
as
 
an
 
Issuing
 
Bank.
 
Upon
 
the
 
acceptance
 
of
 
a
 
successor’s
 
appointment
 
as
 
Agent
hereunder,
 
(i) such
 
successor shall
 
succeed to
 
and become
 
vested with
 
all of
 
the rights,
 
powers, privileges
 
and
duties
 
of
 
the
 
retiring
 
Issuing
 
Bank,
 
if
 
in
 
its
 
sole
 
discretion
 
it
 
elects
 
to,
 
(ii)
 
the
 
retiring
 
Issuing
 
Bank
 
shall
 
be
discharged from
 
all of
 
its respective
 
duties and
 
obligations hereunder
 
or under
 
the other
 
Loan Documents,
 
and
(iii) the successor Issuing Bank,
 
if in its sole
 
discretion it elects to,
 
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 7.07
Non-Reliance
 
on
 
Agent
 
and
 
Other
 
Banks.
 
Each
 
Bank
 
and
 
each
 
Issuing
Bank expressly
 
acknowledges
 
that none
 
of the
 
Agent, or
 
any of
 
their respective
 
Related Parties
 
has
 
made any
representations or warranties
 
to it
 
and that no
 
act taken or
 
failure to act
 
by the Agent,
 
or any of
 
their respective
Related Parties, including any consent to, and acceptance of any assignment or review of the affairs of Borrower
and its Subsidiaries or Affiliates
 
shall be deemed to constitute a representation
 
or warranty of the Agent,
 
or any
of their
 
respective Related
 
Parties to
 
any Bank,
 
or any Issuing
 
Bank as
 
to any
 
matter, including whether
 
the Agent,
or any of their respective Related Parties have disclosed material information in their (or their respective
 
Related
Parties’) possession.
 
Each Bank and each
 
Issuing Bank expressly acknowledges, represents
 
and warrants to the
Agent
 
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 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 making,
 
acquiring, purchasing
 
or holding
 
any other
 
type of
 
financial instrument,
 
(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 Agent, any other Bank 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
 
Borrower and
 
its Subsidiaries, all
 
applicable bank
 
or other
 
regulatory Applicable
 
laws relating
to the Transactions
 
and 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 Bank and
 
each Issuing Bank
 
also acknowledges
that (i) it
 
will, independently and without
 
reliance upon the
 
Agent,
 
or any other Bank
 
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
 
Borrower
 
and
 
its
 
Subsidiaries
 
and
 
(ii)
 
it
 
will
 
not
 
assert
 
any
 
claim
 
in
contravention of this Section 7.07.
 
SECTION 7.08
No
 
Other
 
Duties,
 
Etc.
 
Anything
 
herein
 
to
 
the
 
contrary
 
notwithstanding,
none of
 
the syndication
 
agents, documentation
 
agents, co-agents,
 
arrangers
 
or bookrunners
 
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
 
Agent, a
 
Bank or
 
an Issuing
 
Bank hereunder,
 
but each
such Person shall have the benefit of the indemnities and exculpatory provisions hereof.
ARTICLE VIII
CHANGED CIRCUMSTANCES
SECTION 8.01
Circumstances Affecting Benchmark Availability.
 
Subject to Section 8.03,
in connection
 
with any
 
request for
 
a SOFR
 
Loan or
 
a conversion
 
to or
 
continuation thereof
 
or otherwise,
 
if for
any reason
 
(i) the
 
Agent shall
 
determine (which
 
determination shall
 
be conclusive
 
and binding
 
absent manifest
error)
 
that
 
reasonable
 
and
 
adequate
 
means
 
do
 
not
 
exist
 
for
 
ascertaining
 
Daily
 
Simple
 
SOFR
 
pursuant
 
to
 
the
definition thereof or Term
 
SOFR with respect to a
 
proposed Term
 
SOFR Loan on or prior
 
to the first day of
 
the
applicable Interest
 
Period or
 
(ii) the
 
Required Banks
 
shall determine
 
(which determination
 
shall be
 
conclusive
and binding
 
absent manifest
 
error) that
 
Daily Simple
 
SOFR or
 
Term
 
SOFR, as
 
applicable, does
 
not adequately
and fairly
 
reflect the
 
cost to
 
such Banks
 
of making
 
or maintaining
 
any such
 
Loan during,
 
with respect
 
to Term
SOFR,
 
such
 
Interest
 
Period
 
and,
 
in
 
the
 
case
 
of
 
clause
 
(ii),
 
the
 
Required
 
Banks
 
have
 
provided
 
notice
 
of
 
such
determination to the Agent,
 
then, in each case, the
 
Agent shall promptly give
 
notice thereof to Borrower.
 
Upon
notice
 
thereof by
 
the
 
Agent
 
to
 
Borrower,
 
any obligation
 
of
 
the
 
Banks to
 
make
 
SOFR
 
Loans, and
 
any right
 
of
Borrower to convert any Loan to or continue any
 
Loan as a SOFR Loan, shall be suspended (to the
 
extent of the
affected SOFR Loans
 
or the affected Interest
 
Periods) until the
 
Agent (with respect
 
to clause (ii),
 
at the instruction
of the Required Banks) revokes
 
such notice.
 
Upon receipt of such notice,
 
(A) Borrower may revoke any pending
request for
 
a borrowing
 
of, conversion
 
to or
 
continuation
 
of SOFR
 
Loans (to
 
the extent
 
of the
 
affected
 
SOFR
Loans
 
or
 
the
 
affected
 
Interest
 
Periods)
 
or,
 
failing
 
that,
 
Borrower
 
will
 
be
 
deemed
 
to
 
have
 
converted
 
any
 
such
request into a
 
request for
 
a borrowing of
 
or conversion
 
to Base Rate
 
Loans in the
 
amount specified
 
therein and
(B) any outstanding affected SOFR
 
Loans will be deemed to have been
 
converted into Base Rate Loans (I) with
respect to any Daily
 
Simple SOFR Loans, immediately and
 
(II) with respect to any
 
Term SOFR Loans, at the end
of
 
the
 
applicable
 
Interest
 
Period.
 
Upon
 
any such
 
prepayment or
 
conversion,
 
Borrower shall
 
also
 
pay
 
accrued
interest on the amount so prepaid or converted.
SECTION 8.02
Laws
 
Affecting
 
SOFR
 
Availability.
 
If,
 
after
 
the
 
date
 
hereof,
 
the
introduction of, or any change
 
in, any applicable law or any
 
change in the interpretation or administration
 
thereof
by
 
any
 
governmental
 
authority,
 
central
 
bank
 
or
 
comparable
 
agency
 
charged
 
with
 
the
 
interpretation
 
or
administration thereof, or compliance by any
 
of the Banks (or any
 
of their respective Lending Offices)
 
with any
request or directive (whether or not having the force of law) of any such governmental authority,
 
central bank or
 
 
 
 
comparable agency, shall make it unlawful or
 
impossible for any
 
of the Banks (or any
 
of their respective Lending
Offices) to
 
honor its
 
obligations hereunder
 
to make
 
or maintain
 
any SOFR
 
Loan, or
 
to determine
 
or charge interest
based
 
upon
 
SOFR,
 
Daily
 
Simple
 
SOFR,
 
the
 
Term
 
SOFR
 
Reference
 
Rate
 
or
 
Term
 
SOFR,
 
such
 
Bank
 
shall
promptly give
 
notice thereof
 
to the
 
Agent and
 
the Agent
 
shall promptly
 
give notice
 
to Borrower
 
and the
 
other
Banks (an
 
“Illegality
 
Notice”).
 
Thereafter,
 
until
 
each affected
 
Bank notifies
 
the Agent
 
and the
 
Agent notifies
Borrower that the circumstances giving rise to such determination no longer exist, (i) any obligation of the Bank
to make
 
Daily Simple
 
SOFR Loans
 
or Term
 
SOFR Loans,
 
as applicable,
 
and any
 
right of
 
Borrower to
 
convert
any
 
Loan
 
to
 
a
 
Daily
 
Simple
 
SOFR
 
Loan or
 
a
 
Term
 
SOFR
 
Loan,
 
as
 
applicable,
 
shall
 
be
 
suspended
 
and
 
(ii)
 
if
necessary to avoid
 
such illegality,
 
the Agent
 
shall compute
 
the Base
 
Rate without
 
reference to clause
 
(c) of the
definition
 
of
 
“Base
 
Rate”.
 
Upon
 
receipt
 
of
 
an
 
Illegality
 
Notice,
 
Borrower
 
shall,
 
if
 
necessary
 
to
 
avoid
 
such
illegality, upon
 
demand from any
 
Bank (with a
 
copy to the
 
Agent), prepay or,
 
if applicable, convert
 
all affected
SOFR Loans to Base Rate Loans (in each case, if necessary to avoid such illegality,
 
the Agent shall compute the
Base Rate without reference to clause
 
(c) of the definition of “Base Rate”)
 
(A) with respect to any Daily Simple
SOFR Loans, on
 
the Interest Payment
 
Date therefor and
 
(B) with respect
 
to any Term
 
SOFR Loans, on
 
the last
day of the Interest Period
 
therefor, if all
 
affected Banks may lawfully
 
continue to maintain such
 
SOFR Loans to
such
 
day,
 
or
 
immediately,
 
if
 
any
 
Bank may
 
not
 
lawfully
 
continue
 
to
 
maintain
 
such
 
SOFR
 
Loans to
 
such
 
day.
 
Upon any such prepayment or
 
conversion, Borrower shall also pay
 
accrued interest on the amount
 
so prepaid or
converted.
SECTION 8.03
Benchmark Replacement Setting.
(a)
Benchmark Replacement.
(i)
Notwithstanding anything
 
to the
 
contrary herein
 
or in
 
any other
 
Loan Document,
upon the occurrence of
 
a Benchmark Transition
 
Event with respect to
 
any Benchmark, the Agent
 
and Borrower
may amend this Agreement
 
to replace such 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
 
Agent has
 
posted such
 
proposed amendment
 
to all
 
affected Banks
 
and Borrower
 
so long
 
as the
 
Agent
has
 
not
 
received,
 
by
 
such
 
time,
 
written
 
notice
 
of
 
objection
 
to
 
such
 
amendment
 
from
 
Banks
 
comprising
 
the
Required
 
Banks.
 
No
 
replacement
 
of
 
a
 
Benchmark
 
with
 
a
 
Benchmark
 
Replacement
 
pursuant
 
to
 
this
 
Section
8.03(a)(i) will occur prior to the applicable Benchmark Transition Start Date.
(ii)
No Hedge
 
Agreement shall
 
be deemed
 
to be
 
a “Loan
 
Document” for
 
purposes of
this Section 8.03.
(b)
Benchmark Replacement
 
Conforming Changes.
 
In connection
 
with the
 
use, administration,
adoption or
 
implementation
 
of a
 
Benchmark Replacement,
 
the
 
Agent will
 
have the
 
right to
 
make
 
Conforming
Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document,
any amendments
 
implementing such
 
Conforming Changes
 
will become
 
effective
 
without any
 
further action
 
or
consent of any other party to this Agreement or any other Loan Document.
(c)
Notices;
 
Standards
 
for
 
Decisions
 
and
 
Determinations.
 
The
 
Agent
 
will
 
promptly
 
notify
Borrower and the Banks 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
 
Agent
 
will
 
promptly
 
notify
 
Borrower
 
of
 
the
 
removal
 
or
 
reinstatement
 
of
 
any
 
tenor
 
of
 
a
Benchmark pursuant to
 
Section 8.03(d) and
 
the commencement
 
of any Benchmark
 
Unavailability Period.
 
Any
determination, decision or
 
election that may
 
be made by
 
the Agent or, if
 
applicable, any Bank
 
(or group of
 
Banks)
pursuant to
 
this Section
 
8.03, 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 8.03.
(d)
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 any 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 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 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 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.
(e)
Benchmark
 
Unavailability
 
Period.
 
Upon
 
Borrower’s
 
receipt
 
of
 
notice
 
of
 
the
commencement of
 
a
 
Benchmark Unavailability
 
Period with
 
respect to
 
a
 
given Benchmark,
 
(A)
 
Borrower may
revoke any pending request for a borrowing of,
 
conversion to or continuation of any affected
 
SOFR Loans to be
made, converted
 
or continued
 
during any
 
Benchmark Unavailability
 
Period and,
 
failing that,
 
Borrower will
 
be
deemed to have
 
converted any such
 
request into a
 
request for a
 
borrowing of or
 
conversion to Base
 
Rate Loans
and (B) any
 
outstanding affected SOFR Loans
 
will be deemed
 
to have been
 
converted to Base
 
Rate Loans (I)
 
with
respect to any Daily
 
Simple SOFR Loans, immediately and
 
(II) with respect to any
 
Term SOFR Loans, at the end
of the applicable
 
Interest Period.
 
During any Benchmark
 
Unavailability Period with
 
respect to any
 
Benchmark
or at any
 
time that a tenor
 
for any then-current Benchmark
 
is not an Available Tenor, the component of Base Rate
based upon the
 
then-current Benchmark that
 
is the subject
 
of such Benchmark
 
Unavailability Period or
 
such tenor
for such Benchmark, as applicable, will not be used in any determination of Base Rate.
SECTION 8.04
Illegality.
 
If, in any applicable jurisdiction, the Agent, any Issuing
 
Bank or
any Bank
 
determines that
 
any applicable
 
law has
 
made it
 
unlawful, or
 
that any
 
governmental authority
 
has asserted
that it is unlawful, for the Agent, any Issuing Bank or
 
any Bank to (i) perform any of its obligations hereunder or
under any
 
other Loan
 
Document, (ii)
 
to fund
 
or maintain
 
its participation
 
in any
 
Loan or
 
(iii) issue,
 
make, maintain,
fund or
 
charge interest or
 
fees with
 
respect to
 
any extension of
 
credit, such
 
Person shall
 
promptly notify
 
the Agent,
then, upon the Agent notifying Borrower, and until
 
such notice by such Person is
 
revoked, any obligation of such
Person to issue, make, maintain, fund or charge interest or
 
fees with respect to any such extension of credit shall
be suspended,
 
and
 
to the
 
extent
 
required by
 
applicable law,
 
cancelled.
 
Upon
 
receipt of
 
such notice,
 
the
 
Loan
Parties shall, (A) repay
 
that Person’s participation in the Loans
 
or other applicable Obligations
 
on (I) with respect
to any Daily Simple SOFR
 
Loan, the applicable Interest Payment
 
Date therefor or (II) with
 
respect to any Term
SOFR
 
Loan, the
 
last
 
day
 
of
 
the
 
Interest Period
 
therefor,
 
or
 
on
 
another applicable
 
date
 
with
 
respect
 
to
 
another
Obligation, occurring after the Agent has notified Borrower or, in each case, if earlier, the date specified by such
Person
 
in
 
the
 
notice
 
delivered
 
to
 
the
 
Agent
 
(being
 
no
 
earlier
 
than
 
the
 
last
 
day
 
of
 
any
 
applicable
 
grace
 
period
permitted by Applicable
 
law) and (B)
 
take all
 
reasonable actions requested
 
by such Person
 
to mitigate
 
or avoid
such illegality.
 
 
 
 
ARTICLE IX
MISCELLANEOUS
SECTION 9.01
Notices.
 
All
 
notices,
 
requests
 
and
 
other
 
communications
 
to
 
any
 
party
hereunder shall be
 
in writing (including
 
facsimile transmission or
 
similar writing) and
 
shall be given
 
to such party
at its address or
 
telecopy number set forth
 
on the signature pages
 
hereof or such other
 
address or telecopy number
as such
 
party may hereafter
 
specify for
 
the purpose
 
by notice
 
to each
 
other party.
 
Each such
 
notice, request
 
or
other communication
 
shall be effective
 
(i) if
 
given by
 
telecopier, when such
 
telecopy is
 
transmitted to
 
the telecopy
number specified
 
in this
 
Section and
 
the telecopy
 
machine used
 
by the
 
sender provides
 
a written
 
confirmation
that such telecopy has been so transmitted or receipt of such telecopy transmission is otherwise confirmed, (ii) if
given
 
by
 
mail,
 
72
 
hours
 
after
 
such
 
communication
 
is
 
deposited
 
in
 
the
 
mails
 
with
 
first
 
class
 
postage
 
prepaid,
addressed
 
as
 
aforesaid,
 
and
 
(iii)
 
if
 
given
 
by
 
any
 
other
 
means,
 
when
 
delivered
 
at
 
the
 
address
 
specified
 
in
 
this
Section; provided that notices to the Agent under Article II or Article VIII shall not be effective until received.
SECTION 9.02
No Waivers
 
.
 
No failure
 
or delay
 
by the
 
Agent or
 
any Bank
 
in exercising
any
 
right, power
 
or
 
privilege
 
hereunder
 
or
 
under
 
any
 
Note
 
or
 
other
 
Loan
 
Document
 
shall
 
operate
 
as
 
a
 
waiver
thereof nor
 
shall any single
 
or partial
 
exercise thereof
 
preclude any
 
other or further
 
exercise thereof
 
or the
 
exercise
of
 
any
 
other
 
right,
 
power
 
or
 
privilege.
 
The
 
rights
 
and
 
remedies
 
herein
 
provided
 
shall
 
be
 
cumulative
 
and
 
not
exclusive of any rights or remedies provided by law.
SECTION 9.03
Expenses: Documentary Taxes:
 
Indemnification.
 
(a)
The Loan Parties
 
shall, jointly
 
and severally,
 
pay (i)
 
all expenses of
 
the Agent, including
fees and disbursements of the
 
Agent in connection with any
 
field audits and investigations as provided
 
in Section
5.02 and fees and
 
disbursements of one
 
outside counsel for the
 
Agent in connection with
 
the preparation of this
Agreement and
 
the other
 
Loan Documents,
 
any waiver
 
or consent
 
hereunder or
 
thereunder or
 
any amendment
hereof or thereof
 
or any Default
 
or alleged Default
 
hereunder or thereunder
 
and (ii) if
 
a Default occurs,
 
all out-
of-pocket
 
expenses
 
incurred
 
by
 
the
 
Agent
 
or
 
any
 
Bank,
 
including
 
reasonable
 
and
 
documented
 
fees
 
and
disbursements
 
of
 
counsel,
 
in
 
connection
 
with
 
such
 
Default
 
and
 
collection
 
and
 
other
 
enforcement
 
proceedings
resulting
 
therefrom,
 
including
 
reasonable
 
and
 
documented
 
out-of-pocket
 
expenses
 
incurred
 
in
 
enforcing
 
this
Agreement and the other Loan Documents.
(b)
The Loan Parties shall,
 
jointly and severally,
 
indemnify the Agent
 
and each Bank
 
against
any transfer taxes, documentary taxes, assessments or charges made by any Authority by reason of the execution
and delivery of this Agreement or the other Loan Documents.
(c)
The
 
Loan
 
Parties
 
shall,
 
jointly
 
and
 
severally,
 
indemnify
 
the
 
Agent,
 
the
 
Banks
 
and
 
each
Affiliate
 
thereof
 
and
 
their
 
respective
 
directors,
 
officers,
 
employees
 
and
 
agents
 
from,
 
and
 
hold
 
each
 
of
 
them
harmless against, any and all third party losses, liabilities, claims
 
or damages to which any of them may become
subject, insofar as such
 
losses, liabilities, claims or
 
damages arise out
 
of or result from
 
any actual or proposed
 
use
by Borrower of
 
the proceeds
 
of any
 
extension of
 
credit by
 
any Bank hereunder
 
or breach by
 
any Loan Party
 
of
this Agreement or any other
 
Loan Document or from investigation,
 
litigation (including, without limitation,
 
any
actions taken by the
 
Agent or any of
 
the Banks to enforce
 
this Agreement or
 
any of the other
 
Loan Documents)
or
 
other
 
proceeding
 
(including,
 
without
 
limitation,
 
any
 
threatened
 
investigation
 
or
 
proceeding)
 
relating
 
to
 
the
foregoing, and
 
the
 
Loan Parties
 
shall reimburse
 
the Agent
 
and each
 
Bank, and
 
each Affiliate
 
thereof and
 
their
respective
 
directors,
 
officers,
 
employees
 
and
 
agents,
 
upon
 
demand
 
for
 
any
 
expenses
 
(including,
 
without
limitation,
 
reasonable
 
and
 
documented
 
legal
 
fees)
 
incurred
 
in
 
connection
 
with
 
any
 
such
 
investigation
 
or
proceeding; but
 
excluding any
 
such losses,
 
liabilities, claims,
 
damages or
 
expenses incurred
 
by reason
 
of the
 
gross
negligence or willful misconduct of, or breach of applicable law by, the Person to be indemnified.
 
 
 
 
SECTION 9.04
Sharing of
 
Set-Offs.
 
Each Bank
 
agrees that
 
if it
 
shall, by
 
exercising any
 
right
of set-off or counterclaim or otherwise,
 
receive payment of a proportion
 
of the aggregate amount of
 
principal and
interest
 
owing
 
with
 
respect
 
to
 
the
 
Letter
 
of
 
Credit
 
Advances
 
and
 
Notes
 
held
 
by
 
it
 
which
 
is
 
greater
 
than
 
the
proportion received by
 
any other
 
Bank in respect
 
of the
 
aggregate amount
 
of all
 
Letter of Credit
 
Advances and
principal
 
and
 
interest
 
owing
 
with
 
respect
 
to
 
the
 
Notes
 
held
 
by
 
such
 
other
 
Bank,
 
the
 
Bank
 
receiving
 
such
proportionately greater
 
payment shall
 
purchase such
 
participations in
 
the Letter
 
of Credit
 
Advances and
 
Notes
held
 
by
 
the
 
other
 
Banks
 
owing
 
to
 
such
 
other
 
Banks,
 
and/or
 
such
 
other
 
adjustments
 
shall
 
be
 
made,
 
as
 
may
 
be
required so
 
that
 
all
 
such
 
payments
 
of
 
principal
 
and
 
interest
 
with
 
respect
 
to
 
the
 
Letter of
 
Credit
 
Advances
 
and
Notes held
 
by the
 
Banks owing
 
to such
 
other Banks
 
shall be
 
shared by
 
the Banks
 
pro rata;
 
provided that
 
(i) nothing
in this Section shall impair the right of any Bank to exercise any right of set-off or counterclaim it may have and
to apply
 
the amount
 
subject to
 
such exercise
 
to the
 
payment of
 
indebtedness
 
of the
 
Loan Parties
 
other than
 
its
indebtedness under
 
the Letter
 
of Credit
 
Advances and
 
Notes, and
 
(ii) if
 
all or
 
any portion
 
of such
 
payment received
by the purchasing Bank is thereafter recovered from such purchasing Bank, such purchase from each other Bank
shall be rescinded
 
and such other
 
Bank shall repay
 
to the purchasing
 
Bank the purchase
 
price of such
 
participation
to the extent of such recovery together with an amount equal to
 
such other Bank’s ratable share (according to the
proportion of (x) the amount of such other
 
Bank’s required repayment to
 
(y) the total amount so recovered
 
from
the purchasing
 
Bank) of
 
any interest
 
or other
 
amount paid
 
or payable
 
by the
 
purchasing Bank
 
in respect
 
of the
total
 
amount
 
so
 
recovered.
 
The
 
Loan
 
Parties
 
agree,
 
to
 
the
 
fullest
 
extent
 
they
 
may
 
effectively
 
do
 
so
 
under
applicable
 
law,
 
that
 
any
 
holder
 
of
 
a
 
participation
 
in
 
the
 
Letter
 
of
 
Credit
 
Advances
 
or
 
Notes,
 
whether
 
or
 
not
acquired pursuant to the foregoing
 
arrangements, may exercise rights of
 
set-off or counterclaim and
 
other rights
with respect
 
to such
 
participation as
 
fully as
 
if such
 
holder of
 
a participation
 
were a direct
 
creditor of
 
the Loan
Parties in the amount of such participation.
SECTION 9.05
Amendments and Waivers.
 
(a)
Any provision
 
of this
 
Agreement, the
 
Notes or
 
any other
 
Loan Documents
 
may be
 
amended
or waived
 
if, but
 
only if,
 
such amendment
 
or waiver
 
is in
 
writing and
 
is signed
 
by Borrower
 
and the
 
Required
Banks
 
(and,
 
if
 
the
 
rights
 
or
 
duties
 
of
 
the
 
Agent
 
are
 
affected
 
thereby,
 
by
 
the
 
Agent);
 
provided
 
that
 
no
 
such
amendment or waiver shall (i)
 
change the Revolving Credit
 
Commitment of any Bank or
 
subject any Bank to
 
any
additional obligation without the written consent of such
 
Bank, (ii) change the principal of or
 
decrease the rate of
interest on any
 
Revolving Credit Advance
 
or decrease any
 
fees (excluding fees
 
payable solely to
 
the Issuing Bank
for its
 
own account)
 
hereunder without
 
the written
 
consent of
 
each Bank
 
directly affected
 
thereby,
 
(iii) change
the date
 
fixed for any
 
payment of principal
 
of or
 
interest on
 
any Revolving
 
Credit Advance,
 
or any
 
fees (excluding
fees payable solely to the Issuing Bank for its
 
own account) hereunder without the written consent of
 
each Bank
directly
 
affected
 
thereby,
 
(iv)
 
change the
 
amount
 
of
 
principal,
 
decrease
 
the
 
amount
 
of
 
interest
 
or
 
decrease the
amount of fees (excluding fees payable solely to the Issuing Bank for its
 
own account) due on any date fixed for
the payment thereof
 
without the written consent
 
of each Bank
 
directly affected thereby, (v) change the
 
percentage
of the
 
Revolving Credit
 
Commitments or of
 
the aggregate
 
unpaid principal amount
 
of the
 
Notes, or
 
the percentage
of Banks, which shall be required for the Banks or any of them to take any action under this Section or any
 
other
provision of this
 
Agreement without the
 
written consent of
 
each Bank directly
 
affected thereby,
 
(vi) change the
manner of
 
application of
 
any payments
 
made
 
under this
 
Agreement or
 
the
 
other
 
Loan Documents
 
without
 
the
written
 
consent
 
of
 
each
 
Bank directly
 
affected
 
thereby,
 
(vii)
 
release
 
or
 
substitute
 
all
 
or substantially
 
all
 
of
 
the
collateral, if any,
 
held as security
 
for the Obligations
 
without the written
 
consent of each
 
Bank, (viii) change
 
or
modify the definition of “Required Banks,” without the written
 
consent of each Bank directly affected thereby or
(ix) release any
 
Guarantee given to
 
support payment of
 
the Guaranteed Obligations
 
without the written
 
consent
of the Required
 
Banks, other
 
than with respect
 
to any Subsidiary
 
Guarantor that
 
is permitted to
 
be dissolved
 
or
liquidated pursuant to Section 5.12
 
or with respect to any Subsidiary
 
Guarantor that is an Immaterial
 
Subsidiary
excluded from clauses (g) and (h) of Section 6.01 (and in each such case the Agent may release the Guarantee of
the
 
Subsidiary
 
Guarantor
 
without
 
any
 
further
 
action
 
by
 
the
 
Required
 
Banks),
 
and
 
provided
 
further
 
that
 
no
amendment or waiver shall, unless signed by
 
the Issuing Bank, (A) modify or amend
 
Section 2.03; or (B) change
in any manner, any term or condition applicable to the Letters of Credit or the Letter of Credit Agreements.
 
The
 
 
amount of
 
fees payable
 
solely to
 
the Issuing
 
Bank for
 
its own
 
account may
 
be amended,
 
from time
 
to time,
 
by
Borrower and the Issuing Bank without the approval of any of the Banks.
 
(b)
Notwithstanding
 
anything
 
to
 
the
 
contrary
 
herein,
 
the
 
Agent
 
may,
 
with
 
the
 
consent
 
of
Borrower only,
 
amend, modify
 
or supplement
 
this Agreement
 
or any
 
of the
 
other Loan
 
Documents to
 
cure any
ambiguity, omission, mistake, defect or inconsistency.
SECTION 9.06
Margin
 
Stock
 
Collateral.
 
Each of
 
the
 
Banks represents
 
to
 
the
 
Agent
 
and
each of the
 
other Banks that
 
it in good
 
faith is not, directly
 
or indirectly (by negative
 
pledge or otherwise), relying
upon any Margin Stock as
 
collateral in the extension
 
or maintenance of the
 
credit provided for in
 
this Agreement.
SECTION 9.07
Successors and Assigns.
 
(a)
The
 
provisions
 
of
 
this
 
Agreement
 
shall
 
be
 
binding
 
upon
 
and
 
inure
 
to
 
the
 
benefit
 
of
 
the
parties hereto and their
 
respective successors and
 
assigns; provided that
 
no Loan Party
 
may assign
 
or otherwise
transfer any of its rights under this Agreement.
(b)
Any Bank may at any time sell to one or more Persons (each a “Participant”) participating
interests
 
in
 
any
 
Revolving
 
Credit
 
Advance
 
owing
 
to
 
such
 
Bank,
 
any
 
Note
 
held
 
by
 
such
 
Bank,
 
any
 
Revolving
Credit Commitment hereunder
 
or any other
 
interest of such
 
Bank hereunder.
 
In the event of
 
any such sale
 
by a
Bank
 
of
 
a
 
participating
 
interest
 
to
 
a
 
Participant,
 
such
 
Bank’s
 
obligations
 
under
 
this
 
Agreement
 
shall
 
remain
unchanged, such
 
Bank shall
 
remain solely
 
responsible for
 
the performance
 
thereof, such
 
Bank shall
 
remain the
holder of any
 
such Note for
 
all purposes under
 
this Agreement, and
 
Borrower and the
 
Agent shall continue
 
to deal
solely and directly with such Bank in
 
connection with such Bank’s
 
rights and obligations under this Agreement.
 
In no event shall a Bank
 
that sells a participation be obligated to
 
the Participant to take or refrain from taking
 
any
action hereunder except
 
that such Bank may
 
agree that it will
 
not (except as provided
 
below), without the consent
of the
 
Participant, agree to
 
(i) the
 
change of any
 
date fixed for
 
the payment of
 
principal of or
 
interest on the
 
related
Revolving Credit Advance or Revolving
 
Credit Advances, (ii) the change
 
of the amount of any principal,
 
interest
or fees
 
due on
 
any date
 
fixed for
 
the payment
 
thereof with
 
respect to
 
the related
 
Revolving Credit
 
Advance, or
Revolving
 
Credit
 
Advances,
 
(iii)
 
the
 
change
 
of
 
the
 
principal
 
of
 
the
 
related
 
Revolving
 
Credit
 
Advance
 
or
Revolving
 
Credit
 
Advances,
 
(iv)
 
any
 
change
 
in
 
the
 
rate
 
at
 
which
 
either
 
interest
 
is
 
payable
 
thereon
 
or
 
(if
 
the
Participant is entitled
 
to any
 
part thereof)
 
any fee
 
is payable
 
hereunder from
 
the rate at
 
which the
 
Participant is
entitled
 
to
 
receive
 
interest
 
or
 
any
 
fee
 
(as
 
the
 
case
 
may
 
be)
 
in
 
respect
 
of
 
such
 
participation,
 
(v)
 
the
 
release
 
or
substitution of all or
 
any substantial part of the collateral
 
(if any) held as security
 
for the Obligations, or (vi)
 
the
release
 
of
 
any
 
guaranty
 
given
 
to
 
support
 
payment
 
of
 
the
 
Guaranteed
 
Obligations.
 
Each
 
Bank
 
selling
 
a
participating interest
 
in any
 
Revolving Credit
 
Advance, Note,
 
Revolving Credit
 
Commitment, or
 
other interest
under this
 
Agreement shall,
 
within
 
10 Domestic
 
Business Days
 
of such
 
sale,
 
provide Borrower
 
and
 
the Agent
with
 
written
 
notification
 
stating
 
that
 
such
 
sale
 
has
 
occurred
 
and
 
identifying
 
the
 
Participant
 
and
 
the
 
interest
purchased by
 
such Participant;
 
provided, that
 
a
 
Bank shall
 
not be
 
required
 
to provide
 
written
 
notification of
 
a
participation sold to
 
an Affiliate of
 
a Bank.
 
The Loan Parties agree
 
that each Participant
 
shall be entitled
 
to the
benefits of Article VIII with respect to its participation in Loans outstanding from time to time.
(c)
Any Bank may
 
at any time
 
assign to one
 
or more
 
banks or
 
financial institutions
 
(each an
“Assignee”) all, or
 
a proportionate part
 
of all, of
 
its rights and
 
obligations under this
 
Agreement, the Notes
 
and
the
 
other
 
Loan
 
Documents,
 
and
 
such
 
Assignee
 
shall
 
assume
 
all
 
such
 
rights
 
and
 
obligations,
 
pursuant
 
to
 
an
Assignment and Acceptance
 
in the form attached
 
hereto as Exhibit H,
 
executed by such
 
Assignee, such transferor
Bank and the Agent (and, in the case of: (i) an Assignee that is not then a Bank or an Affiliate of a Bank; and (ii)
an assignment not made during the existence of a Default or an Event of Default,
 
by Borrower); provided that (i)
no interest may
 
be sold by a
 
Bank pursuant to
 
this paragraph (c) unless
 
the Assignee shall
 
agree to assume ratably
equivalent
 
portions
 
of
 
the
 
transferor
 
Bank’s
 
Revolving
 
Credit
 
Commitment,
 
Revolving
 
Credit
 
Advances,
 
and
Letter
 
of
 
Credit
 
Commitment
 
(including
 
without
 
limitation
 
a
 
ratably
 
equivalent
 
portion
 
of
 
such
 
transferor’s
obligations under
 
Section 2.03(c)),
 
(ii) the
 
amount of
 
the Revolving
 
Credit Commitment
 
of the
 
assigning Bank
being assigned pursuant to such assignment (determined
 
as of the effective date of the assignment)
 
shall be equal
to $5,000,000 (or any larger multiple of $1,000,000) (except that any such assignment may be in the full amount
of the assigning Bank’s
 
Revolving Credit Commitment), (iii) no
 
interest may be sold by a
 
Bank pursuant to this
paragraph (c) to any Assignee that is not then
 
a Bank or an Affiliate of
 
a Bank without the consent of Borrower,
which consent shall not be unreasonably withheld, provided that Borrower’s
 
consent shall not be necessary with
respect to
 
any assignment
 
made during
 
the existence
 
of a
 
Default or
 
an Event
 
of Default;
 
(iv) a
 
Bank may
 
not
have more
 
than two
 
Assignees that
 
are not
 
then Banks
 
at any
 
one time,
 
(v) no
 
interest may
 
be sold
 
by a
 
Bank
pursuant to
 
this paragraph (c)
 
to any
 
Assignee that
 
is not
 
then a
 
Bank or
 
an Affiliate of
 
a Bank,
 
without the
 
consent
of the Agent, which
 
consent shall not
 
be unreasonably withheld, provided,
 
that although the Agent’s consent may
not be
 
necessary with
 
respect to
 
an Assignee
 
that is
 
then a
 
Bank or
 
an Affiliate
 
of a
 
Bank, no
 
such assignment
shall be
 
effective until
 
the conditions
 
set forth
 
in the
 
following sentence
 
are satisfied;
 
and (vi)
 
no interest
 
in a
Letter
 
of
 
Credit
 
Commitment
 
(including
 
without
 
limitation
 
any
 
portion
 
of
 
such
 
transferor’s
 
obligations
 
under
Section 2.03(c)) may be sold by a Bank pursuant
 
to this paragraph (c) to any Assignee that is
 
not then a Bank or
an Affiliate
 
of a
 
Bank, without
 
the consent
 
of the Issuing
 
Bank, which
 
consent may
 
be withheld
 
by the
 
Issuing
Bank in
 
its sole
 
and absolute
 
discretion.
 
Upon (A)
 
execution of
 
the Assignment
 
and Acceptance
 
by such
 
transferor
Bank, such
 
Assignee, the Agent
 
and (if applicable)
 
Borrower, (B) delivery of
 
an executed copy
 
of the Assignment
and Acceptance to Borrower and the Agent,
 
(C) payment by such Assignee to such transferor
 
Bank of an amount
equal
 
to
 
the
 
purchase
 
price
 
agreed
 
between
 
such
 
transferor Bank
 
and
 
such
 
Assignee,
 
and
 
(D)
 
payment
 
by the
assigning Bank
 
of a
 
processing and
 
recordation fee
 
of $3,500
 
to the
 
Agent if
 
the Assignee
 
is not
 
a Bank
 
or Affiliate
of a Bank and
 
$1,000 if the
 
Assignee is a Bank
 
or Affiliate of
 
a Bank, such Assignee
 
shall for all
 
purposes be a
Bank party to this Agreement and shall have all the rights and obligations of a Bank under this Agreement to the
same
 
extent
 
as
 
if
 
it
 
were
 
an
 
original
 
party
 
hereto
 
with
 
a
 
Revolving
 
Credit
 
Commitment,
 
and
 
Letter of
 
Credit
Commitment (including, without
 
limitation obligations under Section
 
2.03(c)) as set forth
 
in such instrument
 
of
assumption, and
 
the transferor
 
Bank shall
 
be released
 
from its
 
obligations hereunder
 
to a
 
corresponding extent,
and no further consent or action
 
by Borrower, the Banks or the Agent shall be
 
required.
 
Upon the consummation
of any transfer to
 
an Assignee pursuant to
 
this paragraph (c), the
 
transferor Bank, the Agent
 
and Borrower shall
make
 
appropriate
 
arrangements
 
so
 
that,
 
if
 
required,
 
a
 
new
 
Note
 
is
 
issued
 
to
 
each
 
of
 
such
 
Assignee
 
and
 
such
transferor Bank.
(d)
Subject to the provisions of Section 9.08, the Loan
 
Parties authorize each Bank to disclose
to any Participant, Assignee or other transferee (each a “Transferee”) and any prospective Transferee any and all
financial and other information in such Bank’s possession concerning the Loan Parties which has been delivered
to such
 
Bank by
 
the Loan
 
Parties pursuant
 
to this
 
Agreement or
 
which has
 
been delivered
 
to such
 
Bank by
 
the
Loan
 
Parties
 
in
 
connection
 
with
 
such
 
Bank’s
 
credit
 
evaluation
 
prior
 
to
 
entering
 
into
 
this
 
Agreement.
 
Any
Transferee and any prospective Transferee shall agree to be
 
subject to the terms of Section 9.08 before receiving
any such information.
(e)
No Transferee shall be entitled to receive any greater payment under Section 8.03 than
 
the
transferor Bank would have been entitled
 
to receive with respect to
 
the rights transferred, unless such
 
transfer is
made with Borrower’s prior written consent or by reason of the provisions of
 
Section 8.02 or 8.03 requiring such
Bank to
 
designate a
 
different
 
Lending Office
 
under certain
 
circumstances or
 
at a
 
time when
 
the circumstances
giving rise to such greater payment did not exist.
(f)
Anything in
 
this Section
 
9.07 to
 
the contrary
 
notwithstanding, any
 
Bank may
 
assign and
pledge all
 
or any portion
 
of the
 
Loan and/or obligations
 
owing to it
 
to any
 
Federal Reserve
 
Bank or
 
the United
States Treasury as collateral security pursuant to Regulation A
 
of the FRB and Operating Circular
 
issued by such
Federal Reserve Bank,
 
provided that any
 
payment in respect
 
of such assigned
 
Loan and/or obligations
 
made by
Borrower
 
to
 
the
 
assigning
 
and/or
 
pledging
 
Bank
 
in
 
accordance
 
with
 
the
 
terms
 
of
 
this
 
Agreement
 
shall
 
satisfy
Borrower’s
 
obligations
 
hereunder
 
in
 
respect
 
of
 
such
 
assigned
 
Loan
 
and/or
 
obligations
 
to
 
the
 
extent
 
of
 
such
payment.
 
No such assignment shall release the assigning and/or pledging Bank from its obligations hereunder.
 
 
 
 
 
 
 
 
 
 
 
 
SECTION 9.08
Confidentiality.
 
Each
 
Bank
 
and
 
each
 
Transferee
 
agrees
 
to
 
keep
 
any
information delivered or made available by the Loan Parties, other than
 
any such information that is available to
any Bank
 
or Transferee on
 
a nonconfidential
 
basis prior
 
to disclosure
 
by any
 
Loan Party, confidential
 
from anyone
other than persons employed or retained
 
by such Bank who are or are
 
expected to become engaged in evaluating,
approving, structuring or administering the Loan; provided, however, that nothing herein shall prevent any Bank
from disclosing such information (i) to any other Bank, (ii) upon
 
the order of any court or administrative agency,
(iii) upon
 
the request
 
or demand
 
of any
 
regulatory agency or
 
authority having
 
jurisdiction over
 
such Bank,
 
(iv)
which has
 
been publicly disclosed,
 
(v) to
 
the extent reasonably
 
required in connection
 
with any litigation
 
to which
the
 
Agent,
 
any
 
Bank
 
or
 
their
 
respective
 
Affiliates
 
may
 
be
 
a
 
party,
 
(vi)
 
to
 
the
 
extent
 
reasonably
 
required
 
in
connection with
 
the exercise
 
of any
 
remedy hereunder, (vii)
 
to such
 
Bank’s legal counsel
 
and independent
 
auditors
and (viii) to any actual
 
or proposed Participant, Assignee other
 
Transferee or prospective Transferee of all or part
of its rights
 
hereunder which has
 
agreed in writing,
 
prior to receipt
 
of any such
 
information, to be
 
bound by the
provisions of this Section 9.08 as if it were a Bank hereunder.
SECTION 9.09
Representation
 
by
 
Banks.
 
Each
 
Bank
 
hereby
 
represents
 
that
 
it
 
is
 
a
commercial lender or financial
 
institution which makes loans
 
in the ordinary
 
course of its business and
 
that it will
make
 
its
 
Revolving
 
Credit
 
Advances
 
hereunder
 
for
 
its
 
own
 
account
 
in
 
the
 
ordinary
 
course
 
of
 
such
 
business;
provided, however,
 
that, subject to
 
Section 9.07, the
 
disposition of the
 
Note or Notes
 
held by that
 
Bank shall at
all times be within its exclusive control.
SECTION 9.10
Obligations Several.
 
The obligations
 
of each
 
Bank hereunder
 
are several,
and
 
no
 
Bank
 
shall
 
be
 
responsible
 
for
 
the
 
obligations
 
or
 
commitment
 
of
 
any
 
other
 
Bank
 
hereunder.
 
Nothing
contained in this Agreement
 
and no action taken
 
by the Banks pursuant
 
hereto shall be deemed to
 
constitute the
Banks to be a partnership, an association,
 
a joint venture or any other
 
kind of entity.
 
The amounts payable at any
time hereunder to each Bank shall be a separate and independent debt, each
 
Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and it shall not be necessary
 
for any
other Bank to be joined as an additional party in any proceeding for such purpose.
SECTION 9.11
Survival of
 
Certain Obligations.
 
Sections 8.03(a),
 
8.03(b), 8.05
 
and 9.03,
the obligations
 
of the
 
Loan Parties
 
thereunder,
 
and Section
 
9.08, and
 
the obligations
 
of the
 
Banks, Transferees
and
 
prospective
 
Transferees
 
thereunder
 
and
 
with
 
respect
 
thereto,
 
shall
 
survive,
 
and
 
shall
 
continue
 
to
 
be
enforceable notwithstanding, the termination of this Agreement
 
and the Revolving Credit Commitments and the
payment in full of the principal of and interest on all Revolving Credit Advances.
SECTION 9.12
North Carolina Law.
 
This Agreement and each
 
Note shall be construed
 
in
accordance with and governed by the law of the State of North Carolina.
SECTION 9.13
Severability.
 
In case
 
any one
 
or more
 
of
 
the provisions
 
contained in
 
this
Agreement,
 
the
 
Notes
 
or
 
any
 
of
 
the
 
other
 
Loan
 
Documents
 
should
 
be
 
invalid,
 
illegal
 
or
 
unenforceable
 
in
 
any
respect, the validity, legality and enforceability
 
of the remaining provisions
 
contained herein and
 
therein shall not
in any way be affected or impaired thereby and shall be enforced to the greatest extent permitted by law.
SECTION 9.14
Interest.
 
In no event shall the
 
amount of interest due or
 
payable hereunder
or under
 
the Notes
 
exceed the
 
maximum
 
rate of
 
interest allowed
 
by applicable
 
law,
 
and in
 
the event
 
any such
payment is inadvertently made
 
to any Bank by
 
Borrower or inadvertently received
 
by any Bank, then
 
such excess
sum shall be
 
credited as a
 
payment of principal,
 
unless Borrower shall
 
notify such Bank
 
in writing that
 
it elects
to have such excess sum
 
returned forthwith.
 
It is the express intent
 
hereof that Borrower not pay
 
and the Banks
not receive, directly or indirectly in any manner whatsoever,
 
interest in excess of that which may legally be paid
by Borrower under applicable law.
SECTION 9.15
Interpretation.
 
No
 
provision
 
of
 
this
 
Agreement
 
or
 
any
 
of
 
the
 
other
 
Loan
Documents shall be construed against or interpreted to
 
the disadvantage of any party hereto by
 
any court or other
 
 
 
 
 
 
governmental or judicial authority by reason of such party having or being deemed to have structured or dictated
such provision.
SECTION 9.16
Consent to Jurisdiction.
 
The Loan Parties
 
(a) and each
 
of the Banks
 
and the
Agent irrevocably
 
waives, to
 
the fullest
 
extent permitted
 
by law,
 
any and
 
all right
 
to trial
 
by jury
 
in
 
any legal
proceeding
 
arising
 
out
 
of
 
this
 
Agreement,
 
any
 
of
 
the
 
other
 
Loan
 
Documents,
 
or
 
any
 
of
 
the
 
transactions
contemplated
 
hereby
 
or
 
thereby,
 
(b)
 
submit
 
to
 
personal
 
jurisdiction
 
in
 
the
 
State
 
of
 
North
 
Carolina,
 
the
 
courts
thereof and the United
 
States District Courts sitting
 
therein, for the enforcement of
 
this Agreement, the Notes
 
and
the other
 
Loan Documents, (c)
 
waives any and
 
all personal rights
 
under the law
 
of any jurisdiction
 
to object on
any basis
 
(including, without
 
limitation, inconvenience
 
of forum)
 
to jurisdiction
 
or venue
 
within the
 
State of
 
North
Carolina for the purpose of litigation to enforce this Agreement, the Notes or the other Loan Documents, and (d)
agrees that
 
service of
 
process may
 
be made
 
upon it
 
in the
 
manner prescribed
 
in Section
 
9.01 for
 
the giving
 
of
notice
 
to
 
Borrower.
 
Nothing
 
herein
 
contained, however,
 
shall
 
prevent
 
the
 
Agent
 
from
 
bringing
 
any
 
action
 
or
exercising any rights
 
against any security
 
and against
 
the Loan Parties
 
personally,
 
and against
 
any assets of
 
the
Loan Parties, within any other state or jurisdiction.
SECTION 9.17
Counterparts.
 
This
 
Agreement
 
may
 
be
 
signed
 
in
 
any
 
number
 
of
counterparts, each of which shall be an original, with the same effect as
 
if the signatures thereto and hereto were
upon the same instrument.
SECTION 9.18
Patriot Act Notice.
 
Each Bank and the
 
Agent (the Agent for
 
itself and not
on behalf of any
 
Bank) hereby notifies each
 
Loan Party that pursuant
 
to the requirements of
 
the Patriot Act
 
it is
required to obtain, verify and record information that identifies such Loan Party,
 
which information includes the
name and address
 
of such Loan
 
Party and other
 
information that will allow
 
such Bank or
 
the Agent, as applicable,
to identify such Loan Party in accordance with such Patriot Act.
SECTION 9.19
No
 
Fiduciary
 
Relationship.
 
Borrower
 
and
 
Guarantors,
 
on
 
behalf
 
of
themselves
 
and
 
their
 
respective
 
subsidiaries,
 
agree
 
that
 
in
 
connection
 
with
 
all
 
aspects
 
of
 
the
 
transactions
contemplated
 
hereby
 
and
 
any
 
communications
 
in
 
connection
 
therewith,
 
Borrower,
 
the
 
Guarantors,
 
the
Subsidiaries and their respective
 
Affiliates, on the one hand,
 
and the Agent, the
 
Banks, the Issuing Bank
 
and their
Affiliates, on the
 
other hand, will
 
have a business relationship
 
that does not
 
create, by implication or
 
otherwise,
any fiduciary duty on the part of the Agent, the Banks, the Issuing Bank or their Affiliates, and no such duty will
be deemed to have arisen in connection with any such transactions or communications.
SECTION 9.20
Acknowledgement
 
and
 
Consent
 
to
 
Bail-In
 
of
 
Affected
 
Financial
Institutions.
 
Notwithstanding
 
anything
 
to
 
the
 
contrary
 
in
 
any
 
Loan
 
Document
 
or
 
in
 
any
 
other
 
agreement,
arrangement or understanding
 
among any such
 
parties, each party
 
hereto acknowledges that
 
any liability of
 
any
Affected Financial Institution arising under any
 
Loan Document, 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 any other Loan Document; or
(iii)
the variation
 
of
 
the
 
terms
 
of such
 
liability in
 
connection with
 
the
 
exercise
 
of the
Write-Down and Conversion Powers of the applicable Resolution Authority.
SECTION 9.21
Certain ERISA Matters.
(a)
Each Bank
 
(x) represents
 
and warrants,
 
as of
 
the date
 
such Person
 
became a
 
Bank party
hereto, and (y) covenants, from
 
the date such Person became a
 
Bank party hereto to the
 
date such Person ceases
being a Bank party hereto, for the
 
benefit of, the Agent, and their respective
 
Affiliates, and not, for the avoidance
of doubt, to
 
or for the benefit
 
of Borrower or any
 
other Loan Party,
 
that at least
 
one of the following
 
is and will
be true:
(i)
such Bank
 
is not
 
using “plan
 
assets” (within
 
the meaning
 
of Section
 
3(42) of
 
ERISA
or otherwise
 
for purposes
 
of Title
 
I of
 
ERISA or
 
Section 4975
 
of the
 
Code) of
 
one or
 
more Benefit
 
Plans with
respect to such Bank’s entrance into,
 
participation in, administration of
 
and performance of the
 
Loans, the Letters
of Credit or the commitments or this Agreement;
(ii)
the prohibited
 
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 so as to exempt
from
 
the
 
prohibitions
 
of
 
Section
 
406
 
of
 
ERISA
 
and
 
Section
 
4975
 
of
 
the
 
Code
 
such
 
Bank’s
 
entrance
 
into,
participation in, administration of and performance of the Loans, the Letters of Credit, the commitments and this
Agreement;
(iii)
(A) such Bank
 
is an investment
 
fund managed by
 
a “Qualified Professional
 
Asset
Manager” (within the
 
meaning of Part
 
VI of PTE
 
84-14), (B) such
 
Qualified Professional Asset
 
Manager made
the investment
 
decision on
 
behalf of
 
such Bank
 
to enter
 
into, participate
 
in, administer
 
and perform
 
the Loans,
the Letters of Credit, the commitments and this
 
Agreement, (C) the entrance into, participation in,
 
administration
of
 
and
 
performance
 
of
 
the
 
Loans,
 
the
 
Letters
 
of
 
Credit,
 
the
 
commitments
 
and
 
this
 
Agreement
 
satisfies
 
the
requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Bank,
the requirements of subsection (a) of Part I of PTE 84-14 are satisfied
 
with respect to such Bank’s
 
entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the commitments and this
Agreement; or
 
(iv)
such
 
other
 
representation,
 
warranty
 
and
 
covenant
 
as
 
may
 
be
 
agreed
 
in
 
writing
between the Agent, in its sole discretion, and such Bank.
 
(b)
In addition, unless either (1)
 
sub-clause (i) in the immediately
 
preceding clause (a) is true
with respect to
 
a Bank or
 
(2) a Bank
 
has provided another
 
representation, warranty and
 
covenant in accordance
with sub-clause (iv) in the immediately preceding clause
 
(a), such Bank further (x) represents and warrants, as
 
of
the date
 
such Person became
 
a Bank party
 
hereto, to, and
 
(y) covenants, from
 
the date such
 
Person became a
 
Bank
party hereto
 
to the
 
date
 
such Person
 
ceases
 
being
 
a
 
Bank party
 
hereto,
 
for
 
the benefit
 
of,
 
the Agent,
 
and their
respective Affiliates,
 
and
 
not, for
 
the
 
avoidance of
 
doubt, to
 
or
 
for the
 
benefit
 
of
 
Borrower or
 
any
 
other
 
Loan
Party, that none of the Agent, and their respective Affiliates is a fiduciary with respect to the assets of such Bank
involved
 
in
 
such
 
Bank’s
 
entrance
 
into,
 
participation
 
in,
 
administration
 
of
 
and
 
performance
 
of
 
the
 
Loans,
 
the
Letters of Credit, the commitments and this Agreement (including in connection with the reservation or exercise
of any
 
rights by
 
the Agent under
 
this Agreement,
 
any Loan
 
Document or
 
any documents
 
related hereto or
 
thereto).
 
SECTION 9.22
Erroneous Payments.
(a)
Each Bank, each
 
Issuing Bank, and
 
any other party
 
hereto hereby severally
 
agrees that
 
if
(i) the Agent notifies (which such notice shall be
 
conclusive absent manifest error) such Bank or Issuing Bank or
any other Person that has
 
received funds from the Agent
 
or any of its Affiliates,
 
either for its own account or
 
on
behalf of a Bank, Issuing Bank (each such recipient, a “Payment Recipient”) that the
 
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 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 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 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 9.22(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 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
 
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 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 Agent
 
and shall be
 
segregated by
 
the Payment Recipient
 
and held
 
in trust
 
for the
 
benefit
of the
 
Agent, and
 
upon demand
 
from the
 
Agent such
 
Payment Recipient
 
shall (or,
 
shall cause
 
any Person
 
who
received
 
any
 
portion
 
of
 
an
 
Erroneous
 
Payment
 
on
 
its
 
behalf
 
to),
 
promptly,
 
but
 
in
 
all
 
events
 
no
 
later
 
than
 
one
Domestic Business
 
Day thereafter,
 
return to
 
the 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
 
Agent
 
at
 
the
 
greater
 
of
 
the
Federal Funds Rate
 
and a rate
 
determined by the
 
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 Agent
for any
 
reason, after
 
demand therefor
 
by the
 
Agent in
 
accordance with
 
immediately preceding
 
clause (c),
 
from
any Bank that
 
is a Payment Recipient
 
or an Affiliate of
 
a Payment Recipient
 
(such unrecovered amount
 
as to such
Bank, an “Erroneous Payment Return
 
Deficiency”), then at the sole
 
discretion of the Agent and upon the
 
Agent’s
written notice
 
to such
 
Bank (i)
 
such Bank
 
shall be
 
deemed to
 
have made
 
a cashless
 
assignment of
 
the full
 
face
amount of 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
 
Agent
 
or,
 
at
 
the
 
option
 
of
 
the
 
Agent,
 
the
 
Agent’s
applicable lending affiliate in
 
an amount that
 
is equal to the
 
Erroneous Payment Return
 
Deficiency (or such
 
lesser
amount
 
as
 
the
 
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 Agent or its
 
applicable lending affiliate
 
as the assignee
 
of such Erroneous
 
Payment Deficiency Assignment.
 
The parties hereto acknowledge and agree
 
that (1) any assignment contemplated
 
in this clause (d) shall
 
be made
 
 
 
 
without any requirement
 
for any payment
 
or other
 
consideration paid by
 
the applicable
 
assignee or
 
received by
the
 
assignor,
 
(2)
 
the
 
provisions
 
of
 
this
 
clause
 
(d)
 
shall
 
govern in
 
the
 
event
 
of
 
any
 
conflict
 
with
 
the
 
terms
 
and
conditions of Section 9.07 and (3) the 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
 
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 Agent
 
to such
 
Payment
Recipient
 
from
 
any
 
source,
 
against
 
any
 
amount
 
due
 
to
 
the
 
Agent
 
under
 
this
 
Section
 
9.22
 
or
 
under
 
the
indemnification provisions of
 
this Agreement, (y)
 
the receipt of
 
an Erroneous Payment
 
by a Payment
 
Recipient
shall not for
 
the purpose of
 
this Agreement be
 
treated as a payment,
 
prepayment, repayment, discharge
 
or other
satisfaction of any Obligations owed
 
by Borrower or any
 
other Loan Party;
provided
that this Section 9.22
 
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 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 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 Agent from Borrower or any other Loan Party for the purpose of making a payment on the
Obligations and (z) to
 
the extent that
 
an Erroneous Payment was
 
in any way or
 
at any time
 
credited as payment
or satisfaction of any
 
of the Obligations,
 
the Obligations or
 
any part thereof
 
that were so credited,
 
and all rights
of the Payment Recipient,
 
as the case may
 
be, shall be
 
reinstated and continue
 
in full force and
 
effect as if
 
such
payment or satisfaction had never been received.
(f)
Each
 
party’s
 
obligations
 
under
 
this
 
Section
 
9.22
 
shall
 
survive
 
the
 
resignation
 
or
replacement of the Agent or
 
any transfer of right or
 
obligations by, or the replacement of, a Bank,
 
the termination
of the commitments or the
 
repayment, satisfaction or discharge
 
of all Obligations (or
 
any portion thereof) under
any Loan Document.
(g)
Nothing in this
 
Section 9.22 will
 
constitute a waiver
 
or release of
 
any claim of
 
the Agent
hereunder arising from any Payment Recipient’s receipt of an Erroneous Payment.
ARTICLE X
GUARANTY
SECTION 10.01
Unconditional
 
Guaranty.
 
Each
 
Guarantor
 
hereby
 
irrevocably,
unconditionally and jointly and severally guarantees, each as a primary obligor and not merely as a surety, to the
Agent, the Issuing Bank and
 
the Banks the due and punctual
 
payment of the principal of
 
and the premium, if any,
and
 
interest
 
on
 
the
 
Guaranteed
 
Obligations
 
and
 
any
 
and
 
all
 
other
 
amounts
 
due
 
under
 
or
 
pursuant
 
to
 
the
 
Loan
Documents, when
 
and as
 
the same
 
shall become
 
due and
 
payable (whether
 
at stated
 
maturity or
 
by optional
 
or
mandatory
 
prepayment
 
or
 
by
 
declaration,
 
redemption
 
or
 
otherwise)
 
in
 
accordance
 
with
 
the
 
terms
 
of
 
the
 
Loan
Documents.
 
The
 
Guarantors’
 
guaranty
 
under this
 
Section
 
is
 
an
 
absolute,
 
present and
 
continuing
 
guarantee
 
of
payment and
 
not of
 
collectability,
 
and is
 
in no
 
way conditional
 
or contingent
 
upon any
 
attempt to
 
collect from
Borrower, any of the Guarantors or any other guarantor
 
of the Guaranteed Obligations (or any
 
portion thereof) or
upon any
 
other
 
action, occurrence
 
or circumstances
 
whatsoever.
 
In the
 
event
 
that Borrower
 
or any
 
Guarantor
shall
 
fail
 
so to
 
pay any
 
such
 
principal,
 
premium, interest
 
or
 
other
 
amount to
 
the
 
Agent, the
 
Issuing Bank
 
or
 
a
Bank, the Guarantors
 
will pay the
 
same forthwith, without demand,
 
presentment, protest or
 
notice of any
 
kind (all
of which
 
are waived
 
by
 
the Guarantors
 
to the
 
fullest
 
extent
 
permitted by
 
law), in
 
lawful
 
money of
 
the United
States, at
 
the place
 
for payment
 
specified in
 
Loan Documents
 
or specified
 
by such
 
Agent in
 
writing, to
 
such Agent.
 
 
The Guarantors further agree, promptly after demand, to pay to
 
the Agent, the Issuing Bank and Banks the costs
and expenses
 
incurred by
 
such Agent,
 
Issuing Bank
 
or Bank
 
in connection
 
with enforcing
 
the rights
 
of such
 
Agent,
Issuing Bank, and Banks against Borrower and any or all of the Guarantors (whether in a bankruptcy proceeding
or otherwise)
 
following any
 
default
 
in payment
 
of any
 
of the
 
Guaranteed Obligations
 
or the
 
obligations
 
of the
Guarantors hereunder,
 
including, without
 
limitation, the
 
reasonable fees
 
and expenses
 
of counsel
 
to the
 
Agent,
Issuing Bank and such Banks.
SECTION 10.02
Obligations Absolute.
 
The obligations of the Guarantors
 
hereunder are and
shall be
 
absolute and
 
unconditional, irrespective
 
of the
 
validity,
 
regularity or
 
enforceability of
 
this Agreement,
any of the Guaranteed
 
Obligations or any of
 
the Loan Documents, shall
 
not be subject
 
to any counterclaim, set-
off, deduction
 
or defense
 
(other than
 
the defense
 
of payment
 
or performance)
 
based upon
 
any claim
 
any of
 
the
Guarantors may have against
 
Borrower,
 
any other Guarantor or
 
the Agent, Issuing Bank
 
or any Bank hereunder
or otherwise, and shall remain
 
in full force and effect
 
without regard to, and shall
 
not be released, discharged or
in any way
 
affected by, to the fullest extent permitted
 
by law, any circumstance or
 
condition whatsoever (whether
or not any of the Guarantors shall have any knowledge or notice thereof), including, without limitation:
(a)
any amendment
 
or modification
 
of or
 
supplement to
 
any of
 
the
 
Loan Documents
 
or any
other
 
instrument
 
referred
 
to
 
herein
 
or
 
therein,
 
or
 
any
 
assignment
 
or
 
transfer
 
of
 
any
 
thereof
 
or
 
of
 
any
 
interest
therein, or any furnishing or acceptance of additional security for any of the Guaranteed Obligations;
(b)
any waiver, consent or extension under any Loan Document or any such other instrument,
or any indulgence
 
or other action
 
or inaction under
 
or in respect
 
of, or any
 
extensions or renewals
 
of, any Loan
Document, any such other instrument or any Guaranteed Obligation;
(c)
any failure,
 
omission or
 
delay on
 
the part
 
of the
 
Agent to
 
enforce, assert
 
or exercise
 
any
right, power or remedy conferred
 
on or available to the Agent,
 
the Issuing Bank or any Bank
 
against Borrower or
any Guarantor, any Subsidiary of Borrower or any Subsidiary of any Guarantor;
(d)
any bankruptcy,
 
insolvency,
 
readjustment, composition, liquidation
 
or similar proceeding
with respect to Borrower, any Guarantor, any Subsidiary of Borrower or any Subsidiary of any Guarantor or any
property of
 
Borrower,
 
any Guarantor
 
or
 
any such
 
Subsidiary or
 
any
 
unavailability of
 
assets
 
against
 
which
 
the
Guaranteed Obligations, or any of them, may be enforced;
(e)
any merger or consolidation of Borrower,
 
any Subsidiary of Borrower or any
 
Guarantor or
any of the Guarantors into or with any other Person or any sale, lease or transfer of any or all of the assets of any
of the Guarantors, Borrower or any Subsidiary of Borrower or any Guarantor to any Person;
(f)
any failure on
 
the part of
 
Borrower, any
 
Guarantor or any
 
Subsidiary of Borrower
 
or any
Guarantor for
 
any reason
 
to comply
 
with or
 
perform any
 
of the
 
terms of
 
any agreement
 
with any
 
of the
 
Guarantors;
(g)
any
 
exercise
 
or
 
non-exercise
 
by
 
the
 
Agent,
 
the
 
Issuing
 
Bank or
 
any
 
Bank,
 
of
 
any
 
right,
remedy,
 
power or
 
privilege under
 
or
 
in respect
 
of
 
any of
 
the
 
Loan Documents
 
or the
 
Guaranteed
 
Obligations,
including, without limitation, under this Section;
(h)
any default, failure or delay, willful or otherwise, in the performance or payment of any
 
of
the Guaranteed Obligations;
(i)
any furnishing or acceptance
 
of security,
 
or any release, substitution
 
or exchange thereof,
for any of the Guaranteed Obligations;
 
 
 
 
(j)
any
 
failure
 
to
 
give
 
notice
 
to
 
any
 
of
 
the
 
Guarantors
 
of
 
the
 
occurrence
 
of
 
any
 
breach
 
or
violation of,
 
or any
 
event of
 
default or
 
any default
 
under or
 
with respect
 
to, any
 
of the
 
Loan Documents
 
or the
Guaranteed Obligations;
(k)
any
 
partial
 
prepayment,
 
or
 
any
 
assignment
 
or
 
transfer,
 
of
 
any
 
of
 
the
 
Guaranteed
Obligations; or
(l)
any other
 
circumstance
 
(other than
 
indefeasible payment
 
in full)
 
which might
 
otherwise
constitute a legal or equitable discharge or defense of a guarantor or which might in any manner or
 
to any extent
vary the risk of such Guarantor.
The Guarantors covenant that their respective obligations
 
hereunder will not be discharged except
by complete performance of
 
the obligations contained
 
in the Loan Documents
 
and this Agreement
 
and the final
and indefeasible
 
payment in
 
full of
 
the Guaranteed
 
Obligations.
 
The Guarantors
 
unconditionally waive,
 
to the
fullest extent permitted by
 
law (A) notice of
 
any of the matters
 
referred to in this
 
Section, (B) any and
 
all rights
which any of the
 
Guarantors may now or
 
hereafter have arising
 
under, and
 
any right to claim
 
a discharge of
 
the
Guarantor’s obligations hereunder by reason of the failure
 
or refusal by the Agent, the
 
Issuing Bank, or any Bank
to take any action pursuant to any
 
statute (including, without limitation, Sections 26- 7, 26-8
 
or 26-9 of the North
Carolina General Statutes
 
or any similar
 
or successor provisions)
 
permitting a Guarantor
 
to request that
 
the Agent
or any
 
Bank attempt
 
to collect
 
the Guaranteed
 
Obligations from
 
Borrower,
 
any of
 
the Guarantors
 
or any
 
other
guarantor, (C) all notices which may be required by statute, rule of law or otherwise to preserve any of the rights
of the Agent, the Issuing Bank or any Bank against the Guarantors, including, without limitation, presentment to
or demand of payment from Borrower,
 
any of the Subsidiaries of Borrower or any Guarantor, or any of the other
Guarantors
 
with
 
respect
 
to
 
any
 
Loan
 
Document
 
or
 
this
 
Agreement,
 
notice
 
of
 
acceptance
 
of
 
the
 
Guarantors’
guarantee hereunder
 
and/or
 
notice to
 
Borrower,
 
any of
 
the
 
Subsidiaries of
 
Borrower or
 
any
 
Guarantor,
 
or
 
any
Guarantor of default or protest for nonpayment or dishonor, (D) any diligence in collection from or protection of
or
 
realization
 
upon
 
all
 
or
 
any
 
portion
 
of
 
the
 
Guaranteed
 
Obligations
 
or
 
any
 
security
 
therefor,
 
any
 
liability
hereunder, or
 
any party primarily or
 
secondarily liable for
 
all or any portion
 
of the Guaranteed Obligations,
 
and
(E) any duty or obligation
 
of the Agent, the Issuing Bank
 
or any Bank to proceed to
 
collect all or any portion
 
of
the Guaranteed
 
Obligations from,
 
or to
 
commence an
 
action against,
 
Borrower, any
 
Guarantor or
 
any other
 
Person,
or to resort
 
to any
 
security or
 
to any
 
balance of any
 
deposit account
 
or credit
 
on the books
 
of the
 
Agent, the Issuing
Bank or any Bank in favor of Borrower,
 
any Guarantor or any other Person, despite any notice
 
or request of any
of the Guarantors to do so.
SECTION 10.03
Continuing Obligations: Reinstatement.
 
The obligations of the Guarantors
under this Article X are continuing obligations and shall continue in full force and effect until such time as all of
the Guaranteed
 
Obligations (and
 
any renewals
 
and extensions
 
thereof) shall
 
have been
 
finally and
 
indefeasibly
paid and satisfied in full.
 
The obligations of the Guarantors under this Article X shall continue to be effective or
be
 
automatically
 
reinstated,
 
as
 
the
 
case
 
may
 
be,
 
if
 
any
 
payment
 
made
 
by
 
Borrower,
 
any
 
Guarantor
 
or
 
any
Subsidiary of
 
Borrower or
 
any Guarantor
 
on, under
 
or in
 
respect of
 
any of
 
the Guaranteed Obligations
 
is rescinded
or
 
must
 
otherwise
 
be
 
restored
 
or
 
returned
 
by
 
the
 
recipient
 
upon
 
the
 
insolvency,
 
bankruptcy,
 
dissolution,
liquidation or
 
reorganization
 
of Borrower,
 
any Guarantor
 
or any
 
such Subsidiary,
 
or upon
 
or as
 
a result
 
of the
appointment of a
 
custodian, receiver,
 
trustee or other
 
officer with
 
similar powers with
 
respect to
 
Borrower, any
Guarantor or any such Subsidiary or any substantial part of the property of Borrower,
 
any Guarantor or any such
Subsidiary, or otherwise,
 
all as though such payment had not been made.
 
If an event permitting the acceleration
of all or
 
any portion of the
 
Guaranteed Obligations shall
 
at any time have
 
occurred and be continuing,
 
and such
acceleration
 
shall
 
at
 
such
 
time
 
be
 
stayed,
 
enjoined
 
or
 
otherwise
 
prevented
 
for
 
any
 
reason,
 
including
 
without
limitation because of the
 
pendency of a case
 
or proceeding relating to
 
Borrower, any Guarantor or any
 
Subsidiary
of Borrower
 
or any
 
Guarantor under
 
any bankruptcy
 
or insolvency
 
law,
 
for purposes
 
of this
 
Article X
 
and the
obligations of the Guarantors hereunder,
 
such Guaranteed Obligations shall be
 
deemed to have been accelerated
 
 
 
 
 
 
 
with the same effect as if
 
such Guaranteed Obligations had been accelerated
 
in accordance with the terms of the
applicable Loan Documents or of this Agreement.
SECTION 10.04
Additional Security, Etc.
 
The Guarantors authorize the Agent on behalf of
the Issuing Bank
 
and Banks
 
without notice to
 
or demand on
 
the Guarantors and
 
without affecting
 
their liability
hereunder, from time
 
to time
 
(a) to
 
obtain additional
 
or substitute
 
endorsers or
 
guarantors; (b)
 
to exercise
 
or refrain
from
 
exercising
 
any
 
rights
 
against,
 
and
 
grant
 
indulgences
 
to,
 
Borrower,
 
any
 
Subsidiary
 
of
 
Borrower
 
or
 
any
Guarantor, any
 
other Guarantor or
 
others; and (c)
 
to apply any sums,
 
by whomsoever paid
 
or however realized,
to
 
the
 
payment
 
of
 
the
 
principal
 
of,
 
premium,
 
if
 
any,
 
and
 
interest
 
on,
 
and
 
other
 
obligations
 
consisting
 
of,
 
the
Guaranteed Obligations.
 
The Guarantors waive any right
 
to require the Agent, the
 
Issuing Bank or any Bank to
proceed against any
 
additional or
 
substitute endorsers
 
or guarantors
 
or Borrower or
 
any of their
 
Subsidiaries or
any other Person or to pursue any other remedy available to the Agent, the Issuing Bank or any such Bank.
SECTION 10.05
Information
 
Concerning
 
Borrower.
 
The
 
Guarantors
 
assume
 
all
responsibility for being
 
and keeping themselves
 
informed of the
 
financial condition and
 
assets of Borrower,
 
the
other
 
Guarantors
 
and
 
their
 
respective
 
Subsidiaries,
 
and
 
of
 
all
 
other
 
circumstances
 
bearing
 
upon
 
the
 
risk
 
of
nonpayment of
 
the Guaranteed
 
Obligations and
 
the nature,
 
scope and
 
extent of
 
the risks
 
which the
 
Guarantors
assume and
 
insure hereunder,
 
and agree
 
that neither
 
the Agent,
 
the Issuing
 
Bank nor
 
any Bank
 
shall have
 
any
duty to advise the
 
Guarantors of information
 
known to the
 
Agent, the Issuing Bank
 
or any such Bank
 
regarding
or in any manner relevant to any of such circumstances or risks.
SECTION 10.06
Guarantors’
 
Subordination.
 
The Guarantors hereby
 
absolutely subordinate,
both
 
in
 
right
 
of
 
payment
 
and
 
in
 
time
 
of
 
payment,
 
any
 
present
 
and
 
future
 
indebtedness
 
of
 
Borrower
 
or
 
any
Subsidiary of Borrower or any Guarantor
 
to any or all
 
of the Guarantors to the indebtedness
 
of Borrower or any
such Subsidiary
 
to
 
the
 
Issuing Bank
 
or
 
the
 
Banks (or
 
any
 
of them),
provided
 
that the
 
Guarantors
 
may receive
scheduled payments of principal, premium (if
 
any) and interest in respect of
 
such present or future indebtedness
so long as there is no Event of Default then in existence.
SECTION 10.07
Waiver
 
of Subrogation.
 
Until the final and indefeasible
 
payment in full of
the Guaranteed Obligations,
 
the Guarantors hereby
 
waive any right
 
of subrogation (under
 
contract, Section 509
of the Bankruptcy Code or otherwise) or any other right
 
of indemnity, reimbursement or contribution and hereby
waive any right
 
to enforce
 
any remedy
 
that the
 
Agent, the
 
Issuing Bank or
 
any Bank
 
now has
 
or may
 
hereafter
have against Borrower, any Guarantor or any endorser or any
 
other guarantor of all or any
 
part of the Guaranteed
Obligations,
 
and
 
the
 
Guarantors
 
hereby
 
waive
 
any
 
benefit
 
of,
 
and
 
any
 
right
 
to
 
participate
 
in,
 
any
 
security
 
or
collateral given to the Agent, the Issuing Bank or any Bank to secure payment or performance of the Guaranteed
Obligations or any other liability of Borrower to the Agent, the Issuing Bank or any Bank.
 
SECTION 10.08
Enforcement.
 
In the
 
event
 
that
 
the
 
Guarantors shall
 
fail
 
forthwith
 
to
 
pay
upon demand
 
of the
 
Agent, the Issuing
 
Bank or
 
any Bank
 
any amounts
 
due pursuant
 
to this
 
Article X
 
or to
 
perform
or comply
 
with or
 
to cause
 
performance or
 
compliance with
 
any other
 
obligation of
 
the Guarantors
 
under this
Agreement, the Agent, the Issuing Bank and any Bank shall be entitled and empowered to institute any action or
proceeding
 
at
 
law
 
or
 
in
 
equity
 
for
 
the
 
collection
 
of
 
the
 
sums
 
so
 
due
 
and
 
unpaid
 
or
 
for
 
the
 
performance
 
of
 
or
compliance with
 
such terms,
 
and may prosecute
 
any such
 
action or
 
proceeding to
 
judgment or
 
final decree
 
and
may enforce such judgment or final decree against the Guarantors and collect in the manner provided by law out
of
 
the
 
property
 
of
 
the
 
Guarantors,
 
wherever
 
situated,
 
any
 
monies
 
adjudged
 
or
 
decreed
 
to
 
be
 
payable.
 
The
obligations of the
 
Guarantors under this
 
Agreement are
 
continuing obligations
 
and a fresh
 
cause of
 
action shall
arise in respect of each default hereunder.
SECTION 10.09
Miscellaneous.
 
Except
 
as
 
may
 
otherwise
 
be
 
expressly
 
agreed
 
upon
 
in
writing, the
 
liability of
 
the Guarantors
 
under this
 
Article X
 
shall neither
 
affect
 
nor be
 
affected
 
by
 
any prior
 
or
subsequent guaranty
 
by the
 
Guarantors of
 
any other
 
indebtedness to
 
the Agent,
 
the Issuing
 
Bank or
 
the Banks.
 
Notwithstanding anything
 
in this
 
Article X
 
to the contrary,
 
the maximum
 
liability of
 
each Guarantor
 
hereunder
shall in no
 
event exceed the
 
maximum amount which
 
could be paid
 
out by such
 
Guarantor without rendering
 
such
Guarantor’s obligations under
 
this Article X,
 
in whole
 
or in part,
 
void or voidable
 
under applicable
 
law, including,
without
 
limitation,
 
(i)
 
the
 
Bankruptcy
 
Code
 
of
 
1978,
 
as
 
amended,
 
and
 
(ii)
 
any
 
applicable
 
state
 
or
 
federal
 
law
relative to fraudulent conveyances.
[The remainder of this page intentionally left blank.]
 
IN WITNESS
 
WHEREOF,
 
the
 
parties
 
hereto have
 
caused this
 
Agreement
 
to be
 
duly
 
executed,
under seal, by their respective authorized officers as of the day and year first above written.
THE CATO
 
CORPORATION
By:
 
/s/ Xxxxxxx X. Xxxxxx
 
Xxxxxxx X. Xxxxxx
Executive Vice President and Chief Financial Officer
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxxx Xxxxxxx, Vice President and
General Counsel
Telecopy number:
 
000-000-0000
Telephone number: 000-000-0000
With a copy to:
 
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxx X. Xxxxxx, Vice President and Chief Financial Officer
 
Telephone number:
 
000-000-0000
Email: Xxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
 
 
THE
 
CATO
 
CORPORATION,
 
as
 
sole
 
member
 
or
 
manager
 
of
 
CatoWest,
 
LLC,
CatoSouth LLC, Cato WO LLC, Cato of
 
Florida L.L.C., Cato of Tennessee,
 
LLC,
Cato of
 
Virginia,
 
LLC, Cato of
 
North Carolina,
 
LLC, Cato
 
of Illinois,
 
LLC, Cato
of South Carolina, LLC and Ohio Cato Stores, LLC
By:
 
/s/ Xxxxxxx X. Xxxxxx
 
Xxxxxxx X. Xxxxxx
 
Executive Vice President and Chief Financial Officer
c/o The Cato Corporation
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxxxxx Xxxxxxx, Vice President and
General Counsel
Telecopy number:
 
000-000-0000
Telephone number:
 
000-000-0000
With a copy to:
 
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxx X. Xxxxxx, Vice President and Chief Financial Officer
 
Telephone number:
 
000-000-0000
Email: Xxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
 
 
CHW,
 
LLC
By:
 
/s/ Xxxxxxx X. Xxxxxx
 
Xxxxxxx X. Xxxxxx
President
c/o The Cato Corporation
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxxx Xxxxxxx, Vice President and
General Counsel
Telecopy number:
 
000-000-0000
Telephone number:
 
000-000-0000
With a copy to:
 
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxx X. Xxxxxx, Vice President and Chief Financial Officer
 
Telephone number:
 
000-000-0000
Email: Xxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
 
 
CADEL LLC
By:
 
CHW,
 
LLC, its Member Manager
 
By:
 
/s/ Xxxxxxx X. Xxxxxx
 
Xxxxxxx X. Xxxxxx
President
c/o The Cato Corporation
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxxx Xxxxxxx, Vice President and
General Counsel
Telecopy number:
 
000-000-0000
Telephone number:
 
000-000-0000
With a copy to:
 
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxx X. Xxxxxx, Vice President and Chief Financial Officer
 
Telephone number:
 
000-000-0000
Email: Xxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
 
 
CATO
 
OF TEXAS L.P.
By:
 
Cato Southwest, Inc., as General Partner
By:
 
/s/ Xxxxxxx X. Xxxxxx
 
Xxxxxxx X. Xxxxxx
President of Cato Southwest, Inc., General Partner
c/o The Cato Corporation
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxxx Xxxxxxx, Vice President and
General Counsel
Telecopy number:
 
000-000-0000
Telephone number:
 
000-000-0000
With a copy to:
 
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxx X. Xxxxxx, Vice President and Chief Financial Officer
 
Telephone number:
 
000-000-0000
Email: Xxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
 
 
CATO
 
SOUTHWEST,
 
INC.
By:
 
/s/ Xxxxxxx X. Xxxxxx
 
Xxxxxxx X. Xxxxxx
President
c/o The Cato Corporation
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxxx Xxxxxxx, Vice President and
General Counsel
Telecopy number:
 
000-000-0000
Telephone number:
 
000-000-0000
With a copy to:
 
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxx X. Xxxxxx, Vice President and Chief Financial Officer
 
Telephone number:
 
000-000-0000
Email: Xxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
 
 
xxxxxxxx.xxx, LLC
By:
 
/s/ Xxxxxxx X. Xxxxxx
 
Xxxxxxx X. Xxxxxx
President
c/o The Cato Corporation
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxxx Xxxxxxx, Vice President and
General Counsel
Telecopy number:
 
000-000-0000
Telephone number:
 
000-000-0000
With a copy to:
 
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxx X. Xxxxxx, Vice President and Chief Financial Officer
 
Telephone number:
 
000-000-0000
Email: Xxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
 
 
CATO
 
OF GEORGIA, LLC
By:
 
/s/ Xxxxxxx X. Xxxxxx
 
Xxxxxxx X. Xxxxxx
President
c/o The Cato Corporation
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxxx Xxxxxxx, Vice President and
General Counsel
Telecopy number:
 
000-000-0000
Telephone number:
 
000-000-0000
With a copy to:
 
8100 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn:
 
Xxxxxxx X. Xxxxxx, Vice President and Chief Financial Officer
 
Telephone number:
 
000-000-0000
Email: Xxxxxxxxxxxxxxxxx@xxxxxxxx.xxx
 
 
 
COMMITMENTS
Revolving Credit Commitment:
$35,000,000
(Letter of Credit
Commitment: $35,000,000)
 
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
 
,
 
as Agent, Issuing Bank and as a
Bank
By:
 
/s/ Xxxx X. Xxxxxxx
 
Name:
 
Xxxx X. Xxxxxxx
Title:
 
Senior Vice President
Lending Office
Xxxxx
 
Fargo Bank, National Association
300 X. Xxxxx Xxxxxx, 00
xx
 
Xxxxx
Xxxxxxxxx, XX 00000
MAC D1130-286
Attention of: Xxxx Xxxxxxx
Telephone No.: (000) 000-0000
Telecopier No
(000) 000-0000
Email:xxxx.xxxxxxx@xxxxxxxxxx.xxx
with a copy to
King & Spalding LLP
300 X Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Attention of: Xxxxxxxxxx Xxxxx
Telephone: (000) 000-0000
Email: xxxxxx@xxxxx.xxx
 
 
SCHEDULE 1.01
Investment Policy
[Attached]
 
 
 
 
THE CATO CORPORATION
CASH INVESTMENT POLICY
I.
 
OBJECTIVES
The
 
objectives
 
of
 
the
 
cash
 
investment
 
policy
 
include
 
maximum
 
safety
 
and
 
preservation
 
of
 
principal,
maximum after-tax yield from cash assets and appropriate
 
liquidity to meet normal cash needs.
II.
 
AUTHORIZED OFFICIALS AND CONTROLS
A.
 
The Chief Executive
 
Officer, Chief Financial Officer and/or
 
Treasurer each may
 
execute a single
 
non-
equity investment purchase or
 
sale up to
 
$10,000,000, and any single
 
purchase or sale transaction
in excess
 
of
 
$10,000,000 must
 
be approved
 
in writing
 
by two
 
of
 
the three
 
designated officers
 
and
evidence of such approval must be filed in the company’s records.
B.
 
All equity investments, regardless
 
of value, must be
 
approved by two of
 
the three designated officers
listed in A above.
C.
 
The Treasurer will
 
review a daily
 
summary of investment
 
activity presented
 
in the Investment
 
Position
Report to ensure investments adhere to the policy.
D.
 
The daily administration of
 
the investment activities will be
 
done under the direction of
 
the Treasurer.
 
In the absence of the Treasurer, the Treasury personnel will perform the daily administration.
E.
 
Investment activity may
 
be conducted by
 
outside managers provided
 
the manager(s) are
 
approved
by two
 
of the three
 
designated corporate
 
officers listed
 
in A
 
above.
 
The manager
 
must provide,
 
under
a signed contract, that they will adhere to quality and liquidity
 
guidelines contained in this policy.
III.
 
INVESTMENT PARAMETERS
A.
 
No investments will be made which violate covenants contained in
 
bank loans or other agreements.
B.
 
Safety of principal is the primary consideration.
C.
 
Liquidity must be provided to meet the Company’s projected cash requirements.
D.
 
The highest yield should be obtained providing for safety of principal
 
and required liquidity.
E.
 
All outside
 
managers
 
are required
 
to
 
conduct sufficient
 
due diligence
 
to support
 
the
 
viability of
 
an
investment beyond
 
any rating
 
assigned by
 
rating agencies
 
and provide
 
Cato with
 
an outline
 
of the
due diligence procedures followed.
F.
No foreign currency based investments are permitted.
G.
 
No manager is permitted to invest in derivative investments except
 
as outlined in Section I.
IV.
 
DEFINITIONS
A.
 
The following definitions apply to the terms used in this policy:
Security –
 
An individual
 
financial instrument
 
(bond, share
 
of stock,
 
note, etc.)
 
issued by
 
a specific
company,
 
government entity or
 
bank.
 
Separate purchases of
 
the same instrument
 
made at
different times are considered one security.
 
Portfolio – The total of the Company’s cash, cash equivalents, bond and equity
 
investments.
Portfolio Division
 
– A
 
subset of
 
the total
 
portfolio subject
 
to separate
 
and distinct
 
maturity and
 
duration
limits.
Portfolio
 
Division
 
Limit
 
–
 
The
 
maximum
 
percentage
 
that
 
any
 
portfolio
 
division
 
can
 
be
 
of
 
the
 
total
portfolio’s value at any one time.
Individual Security Limit –
 
The maximum percentage that
 
any security can
 
be of the
 
total portfolio’s
value at the time of a new security’s purchase, regardless of portfolio division.
Aggregate
 
Category
 
Limit
 
–
 
The
 
maximum
 
percentage
 
that
 
the
 
total
 
value
 
of
 
all
 
securities
 
in
 
a
particular category
 
can be
 
of the
 
total portfolio’s
 
value at
 
the time
 
of a
 
new security’s
 
purchase,
regardless of portfolio division.
Maturity –
 
The date
 
on which
 
the life
 
of a
 
financial instrument
 
ends through
 
cash or
 
physical settlement
or expiration with no value.
 
The maturity of a bond refers to the date that the debt will cease
to exist, at which time the issuer will redeem the bond by
 
paying
 
the principal (or face value).
V.
PORTFOLIO DIVISIONS
A.
 
The
 
Company’s total
 
portfolio will
 
be
 
divided into
 
four
 
portfolio divisions
 
each
 
with a
 
progressively
longer
 
maximum
 
maturity and
 
average
 
duration and
 
a
 
fifth
 
division composed
 
of
 
any
 
investments
described in Section VI, subsections G and H.
B.
 
The securities in
 
each of the
 
first four divisions
 
can be from
 
any of the
 
approved categories
 
in Section
VI with the exception of subsections G and H.
C.
 
The portfolio in total should have an average duration of no more
 
than 2.5 years.
D.
 
The five portfolio divisions are defined as follows:
●
 
Division 1 – Liquid portfolio to meet the operating needs of the Company
 
with a maximum
maturity of one year.
 
No portfolio division limit.
●
 
Division 2 – Short-term portfolio with a maximum maturity of
 
3 years and average duration of 1.5
years.
 
No portfolio division limit.
●
 
Division 3 – Medium-term portfolio with a maximum maturity
 
of 10 years from settlement date
and average duration of 3.5 years.
 
A portfolio division limit of 20%.
●
 
Division 4 – Long-term portfolio with a maximum maturity
 
of 10 years from settlement date and
average duration of 5 years.
 
A portfolio division limit of 5%.
●
 
Division 5 – Special investment division of equity and hedge fund investments
 
with a portfolio
division limit of 10%.
VI.
 
AUTHORIZED INVESTMENT CATEGORIES
A.
 
Money Market Funds:
Readily marketable funds that trade on a constant net asset value
 
and which invest solely in
securities otherwise eligible for purchase/investment under this policy’s guidelines.
●
 
Rating minimum of obligation or obligor: P-1, or A3 by Moody’s or A- by Standard
 
& Poor’s.
●
 
Individual security limit: None
●
 
Aggregate category limit: None
B.
 
Taxable
 
and Tax
 
Advantaged Corporate Debt:
Instruments issued by US and foreign (only foreign corporate
 
bonds) corporations.
 
Includes
corporate notes, corporate bonds, floating rate notes, mutual
 
funds and auction-rate preferred
stock, USD denominated and issued in the US.
●
 
Rating minimum of obligation or obligor of securities with
 
minimum security ratings of
Baa3/BBB-/BBB- with maximum maturity of 5 years for those securities
 
rated lower than A3/A-
/A- by Moody’s or Standard & Poor’s.
 
For securities rated A3/A-/A- or higher, permit maximum
security maturity of 10 years.
●
 
Individual security limit: 5% of the Market Value of the portfolio.
●
 
Aggregate category limit: None
C.
 
Taxable
 
And Tax
 
Advantaged Municipal Issues:
Investments in this category shall consist principally of obligations
 
of
States/Municipalities/Institutions.
●
 
Rating minimum of obligation or obligor of securities with
 
minimum security ratings of
Baa3/BBB-/BBB- with maximum maturity of 5 years for those securities
 
rated lower than A3/A-
/A- by Moody’s or Standard & Poor’s.
 
For securities rated A3/A-/A- or higher, permit maximum
security maturity of 10 years.
 
The implied rating of the underlying Letter of Credit may be used
if the issue is not rated.
●
 
First preference should be given to states in which the Company
 
has taxable income for tax
advantaged issues.
●
 
Individual security limit: 5% of the Market Value of the portfolio.
●
 
Aggregate category limit: None
D.
 
Asset-Backed Securities
Investments in this category shall include, but not be limited
 
to asset-backed obligations related to
real estate, automobile loans and credit card portfolios.
●
 
In order to qualify as a permitted ABS the following is required:
●
 
The bond is to be senior in the deal capital structure;
●
 
Trust deal size needs to be greater than $250MM; and
●
 
Tranche size needs to be greater than $50MM.
●
 
Individual security limit: 5% of the Market Value of the portfolio.
●
 
Aggregate category limit: None
E.
 
Repurchase Agreements:
Placed through recognized broker/dealers or banks acting as principal
 
and backed: 1) direct
obligations of the U.S. Government having a present market value equal
 
to the investment or, 2)
obligations of federal agencies having a present market value
 
equal to the investment, or 3)
commercial paper of A2 or P2 or better quality having a present market
 
value equal to the
investment.
●
 
Individual security limit: 25% of the Market Value of the portfolio.
●
 
Aggregate category limit: None
F.
Money market instruments issued by
 
US and foreign corporations
 
and banks, issued in the
 
US and
paid in US
 
dollars.
 
Includes CDs, Commercial
 
Paper (including Asset
 
Backed Commercial Paper),
Bankers Acceptances, time deposits.
●
 
Rating minimum of obligation or obligor of securities with
 
minimum security ratings of P-1 by
Moody’s or A-1 by Standard & Poor’s.
●
 
Individual security limit: 5% of the Market Value of the portfolio.
●
 
Aggregate category limit: None
G.
 
Sovereign and supranational debt
 
denominated in US
 
dollars, issued under
 
US securities law,
 
may
be issued by Foreign agencies, Sovereigns, Supranational
 
entities
●
 
Rating minimum of obligation or obligor of securities with
 
minimum security ratings of P-1 by
Moody’s or A-1 by Standard & Poor’s.
●
 
Individual security limit: 5% of the Market Value of the portfolio.
●
 
Aggregate category limit: None
 
 
H.
 
U.S.
 
Government
 
and
 
Government
 
Sponsored
 
Agency
 
Securities
 
Direct
 
obligations
 
of
 
the
 
U.S.
Government and those federal
 
agencies whose obligations
 
are guaranteed by the U.S.
 
Government,
repurchase
 
agreements
 
collateralized
 
by
 
eligible
 
investments
 
of
 
the
 
US
 
Government
 
or
 
US
Government agencies.
●
 
Rating minimum of obligation or obligor of securities with
 
minimum security ratings of P-1 by
Moody’s or A-1 by Standard
 
& Poor’s.
●
 
Rating minimum of obligation or obligor of securities with
 
minimum security ratings of A-3 by
Moody’s or A- by Standard & Poor’s if security only has long term
 
ratings.
●
 
Individual security limit: No limit if direct obligation of US; otherwise
 
50% if not guaranteed by
US
●
 
Aggregate category limit: None
I.
 
Equities:
Common Stocks or equivalents including Unit Investment Trusts, preferred stocks, securities
convertible into common stock, partnerships investing in equities and
 
mutual funds
●
 
Rating minimum of obligation or obligor: Not Applicable
●
 
Individual security limit: 5%
●
 
Aggregate category limit: 10%
VII.
 
SECURITY LIMITATIONS
A.
 
Single and aggregate security limitations apply to the portfolio’s total value at the
 
time of the
security purchase.
 
It is the Company’s intention to monitor the overall allocation of the portfolio.
VIII.
 
INVESTMENTS OUTSIDE OF POLICY
A.
 
It is understood that there may be corporate investments of a longer-term
 
nature that are not
covered under this policy.
 
These investments, which may include for example, equity-related
acquisitions, require separate Board approval and are not intended
 
to be governed under this
Policy.
 
Likewise, any permanent changes to these guidelines must be
 
approved by the Board of
Directors.
 
 
 
SCHEDULE 4.17
Existing Subsidiaries
Name of Subsidiary
Jurisdiction of Organization
CatoWest,
 
LLC
Nevada
Cedar Hill National Bank
United States
CHW,
 
LLC
Delaware
Cato Southwest, Inc.
Delaware
CatoSouth LLC
North Carolina
Providence Insurance Company, Limited
North Carolina
CaDel LLC
Delaware
xxxxxxxx.xxx, LLC
Delaware
Cato of Texas X.X.
Xxxx WO LLC
 
Cato of Florida L.L.C.
 
Cato of Tennessee, LLC
 
Cato of Virginia,
 
LLC
 
Cato of North Carolina, LLC
 
Cato of Illinois, LLC
 
Cato of South Carolina, LLC
 
Ohio Cato Stores, LLC
 
Cato of Georgia, LLC
Cato Overseas Limited
Shanghai Cato Overseas Business
Consultancy Company, Limited
Cato Overseas Services Limited
Cato Employee Services Management, LLC
Cato Employee Services L.P.
Texas
Delaware
Florida
Tennessee
Virginia
North Carolina
Illinois
South Carolina
Ohio
Georgia
Hong Kong
China
Hong Kong
Texas
Texas
Cato Services Vietnam Company Limited
Vietnam
Cato Land Development, LLC
South Carolina
 
Fort Mill Land Development LLC
North Carolina
 
SCHEDULE 5.10
Existing Investments
None.
 
 
 
SCHEDULE 5.27
Existing Debt
Schedule of Indebtedness
As of May 19, 2022
Equipment Leases:
●
Xxxxxxx Business Systems – maturing on September 2024
o
29 payments totaling
 
$174,754.00
●
CSI Leasing Inc. – maturing on May 2024
o
25 payments totaling
 
$1,287,335.00
 
 
EXHIBIT A
REVOLVING CREDIT
 
NOTE
$_________
 
Charlotte, North Carolina
__________ __, 2022
For value received, THE CATO
 
CORPORATION
 
(the “Borrower”) promises to pay to
 
the order
of
 
____________________
 
(the
 
“Bank”),
 
for
 
the
 
account
 
of
 
its
 
Lending
 
Office,
 
the
 
principal
 
sum
 
of
_____________________________________________
 
and
 
No/100
 
Dollars
 
($___________),
 
or
 
such
 
lesser
amount as shall
 
equal the unpaid
 
principal amount
 
of each Revolving
 
Credit Advance
 
made by
 
the Bank to
 
the
Borrower pursuant
 
to the
 
Credit Agreement
 
referred to
 
below,
 
on the
 
dates and
 
in the
 
amounts provided
 
in the
Credit Agreement.
 
The Borrower
 
promises to
 
pay interest
 
on the
 
unpaid principal
 
amount of
 
this Note
 
on the
dates and at
 
the rate or
 
rates provided for
 
in the Credit
 
Agreement.
 
Interest on any overdue
 
principal of and,
 
to
the extent permitted
 
by law, overdue interest
 
on the principal
 
amount hereof shall
 
bear interest
 
at the Default
 
Rate,
as provided
 
for in
 
the Credit
 
Agreement.
 
All such
 
payments of
 
principal
 
and interest
 
shall be
 
made in
 
lawful
money of
 
the United
 
States in
 
federal or
 
other immediately
 
available funds
 
at the
 
office of
 
Xxxxx
 
Fargo
 
Bank,
National Association, 300
 
X. Xxxxx
 
Xxxxxx, 28
th
 
Floor, Chxxxxxxx,
 
Xxxxx Xxxxxxxx
 
00000 xr at
 
such other address
as may be specified from time to time pursuant to the Credit Agreement.
All Revolving Credit Advances made by the Bank,
 
the interest rates from time to time
 
applicable
thereto and all repayments of
 
the principal thereof shall be
 
recorded by the Bank
 
and, prior to any transfer
 
hereof,
endorsed by the
 
Bank on the
 
schedule attached hereto,
 
or on a
 
continuation of such
 
schedule attached to
 
and made
a
 
part
 
hereof;
 
provided
 
that
 
the
 
failure
 
of
 
the
 
Bank
 
to
 
make,
 
or
 
any
 
error
 
of
 
the
 
Bank
 
in
 
making,
 
any
 
such
recordation
 
or
 
endorsement
 
shall
 
not
 
affect
 
the
 
obligations
 
of
 
the
 
Borrower
 
hereunder
 
or
 
under
 
the
 
Credit
Agreement.
This Note is one of the Notes referred
 
to in the Credit Agreement dated as of _________ __,
 
2022
among the Borrower,
 
the Initial Guarantors,
 
the banks listed
 
on the signature pages
 
thereof and their
 
successors
and assigns,
 
Xxxxx Fargo Bank, National Association,
 
as Issuing
 
Bank and
 
as Agent
 
(as the
 
same may
 
be amended
or modified from time to time, the “Credit Agreement”).
 
Terms defined in the Credit Agreement are used herein
with the same meanings.
 
Reference is made to
 
the Credit Agreement for
 
provisions for the prepayment
 
and the
repayment hereof and the acceleration of the maturity hereof.
The
 
Borrower
 
hereby
 
waives
 
presentment,
 
demand,
 
protest,
 
notice
 
of
 
demand,
 
protest
 
and
nonpayment
 
and
 
any
 
other
 
notice
 
required
 
by
 
law
 
relative
 
hereto,
 
except
 
to
 
the
 
extent
 
as
 
otherwise
 
may
 
be
expressly provided for in the Credit Agreement.
The
 
Borrower
 
agrees,
 
in
 
the
 
event
 
that
 
this
 
Note
 
or
 
any
 
portion
 
hereof
 
is
 
collected
 
by
 
law
 
or
through
 
an
 
attorney
 
at
 
law,
 
to
 
pay
 
all
 
reasonable
 
costs
 
of
 
collection,
 
including,
 
without
 
limitation,
 
reasonable
attorneys’ fees.
 
 
IN
 
WITNESS
 
WHEREOF,
 
the
 
Borrower
 
has
 
caused
 
this
 
Revolving
 
Credit
 
Note
 
to
 
be
 
duly
executed under seal, by its duly authorized officer as of the day and year first above written.
THE CATO
 
CORPORATION
By:
 
(SEAL)
Title:
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Revolving Credit Note (cont’d)
ADVANCES
 
AND PAYMENTS
 
OF PRINCIPAL
Date
Interest
Rate
Amount of
Loan
Amount of
Principal
Repaid
Notation
Made By
 
 
 
EXHIBIT B
NOTICE OF BORROWING
____________, 20__
To:
 
Xxxxx
 
Fargo Bank, National Association
Re:
 
Credit Agreement (as amended and modified from
 
time to time, the “Credit Agreement”) dated
 
as
of ________
 
__,
 
2022 among
 
The
 
Cato Corporation,
 
the
 
Initial Guarantors,
 
Xxxxx
 
Fargo
 
Bank,
National
 
Association,
 
as
 
Issuing
 
Bank
 
and
 
Agent
 
and
 
the
 
Banks
 
listed
 
on
 
the
 
signature
 
pages
thereof
Ladies & Gentlemen:
Unless otherwise
 
defined herein,
 
capitalized terms
 
used herein
 
shall have
 
the meanings
 
attributable
thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02 of the Credit Agreement.
The Borrower hereby
 
requests a [Daily
 
Simple SOFR Borrowing] [Term SOFR Borrowing]
 
[Base
Rate Borrowing] in the aggregate principal amount of $____________
 
to be made on ____________, 20__, and
for interest
 
to accrue
 
thereon at
 
the
 
rate
 
established by
 
the
 
Credit Agreement
 
for [Daily
 
Simple
 
SOFR
 
Loans]
[Term
 
SOFR Loans]
 
[Base Rate
 
Loans].
 
[If [Daily
 
Simple SOFR
 
Loan Borrowing]
 
[Term
 
SOFR Borrowing],
the duration of the Interest Period with respect thereto shall be [1 month] [2 months] [3 months] [6 months]].
The
 
Borrower
 
has
 
caused
 
this
 
Notice
 
of
 
Borrowing
 
to
 
be
 
executed
 
and
 
delivered
 
by
 
its
 
duly
authorized officer this _____ day of ____________, 20__.
THE CATO
 
CORPORATION
By:
 
Title:
 
EXHIBIT C
[Reserved.]
 
 
EXHIBIT D
CLOSING CERTIFICATE
Reference is made to
 
the Credit Agreement (the “Credit
 
Agreement”) dated as of
 
______ __, 2022 among
The Cato
 
Corporation, the
 
Initial Guarantors,
 
Xxxxx Fargo Bank, National
 
Association, as
 
Issuing Bank
 
and Agent
and the
 
banks listed
 
on the
 
signature pages
 
thereof.
 
Capitalized terms
 
used herein
 
have the
 
meanings ascribed
thereto in the Credit Agreement.
Pursuant
 
to
 
Section
 
3.01(d)
 
of
 
the
 
Credit
 
Agreement,
 
_____________________,
 
the
 
duly
 
authorized
______________________ of the
 
Borrower hereby certifies
 
to the Agent
 
and the Banks
 
that: (i) no
 
Default has
occurred and is continuing on the date
 
hereof; and (ii) the representations and warranties of
 
the Borrower and the
Initial Guarantors contained in Article IV of the Credit Agreement are true on and as of the date hereof.
Certified as of the _____ day of _________, 2022.
THE CATO
 
CORPORATION
By:
 
Title:
 
 
EXHIBIT E
SECRETARY’S
 
CERTIFICATE
The
 
undersigned,
 
_____________,
 
____________
 
Secretary
 
of
 
_______________,
 
a
_____________ corporation (the “Company”), hereby certifies that he has been duly elected,
 
qualified and is acting in such capacity and that,
 
as such, he is familiar with the facts
 
herein certified and is duly
authorized to
 
certify the
 
same, and
 
hereby further certifies,
 
in connection
 
with that
 
certain Credit
 
Agreement dated
as of _________ __, 2022 among The Cato Corporation, the Initial Guarantors listed therein, Xxxxx
 
Fargo Bank,
National Association, as Issuing Bank and Agent and the Banks listed on the signature pages thereof that:
1.
 
Attached
 
hereto
 
as
 
Exhibit
 
A
 
is
 
a
 
complete
 
and
 
correct
 
copy
 
of
 
the
 
Certificate
 
of
[Incorporation/Organization/Partnership] of the Company
 
as in full
 
force and effect
 
on the date
 
hereof as certified
by the Secretary of State of the State of _____________, Company’s state of organization.
2.
 
Attached
 
hereto
 
as
 
Exhibit
 
B
 
is
 
a
 
complete
 
and
 
correct
 
copy
 
of
 
the
 
Certificate
 
of
 
Good
Standing of
 
the Company
 
issued by
 
the Secretary
 
of State
 
of the
 
State of
 
_____________, Company’s
 
state of
organization.
3.
 
Attached
 
hereto
 
as
 
Exhibit
 
C
 
is
 
a
 
complete
 
and
 
correct
 
copy
 
of
 
the
[Bylaws/Operating/Partnership Agreement] of the Company as in full force and effect on the date hereof.
4.
 
Attached hereto
 
as Exhibit
 
D is
 
a complete
 
and correct
 
copy of
 
the resolutions
 
duly adopted
by the [Board of Directors/Managers/Members/Partners]
 
of the Company on ____________
 
__, 2022, approving
and authorizing
 
the execution
 
and delivery
 
of the
 
Credit Agreement,
 
the Notes
 
(as such
 
term is
 
defined in
 
the
Credit Agreement) and the other
 
Loan Documents (as such term
 
is defined in the Credit
 
Agreement) to which the
Company is a party.
 
Such resolutions have not been repealed or amended and are in full force and effect, and no
other resolutions or consents
 
have been adopted by
 
the [Board of Directors/Managers/Members/Partners]
 
of the
Company in connection therewith.
 
 
 
 
5.
Each person
 
who, as
 
an officer
 
of the
 
Company signed
 
the Credit
 
Agreement, the
 
Notes
and the other Loan Documents to
 
which the Company is a
 
party, was duly elected, qualified and acting as such at
the
 
time
 
such
 
person
 
signed
 
the
 
Credit
 
Agreement,
 
the
 
Notes
 
and
 
the
 
other
 
Loan
 
Documents
 
to
 
which
 
the
Company is
 
a party,
 
and his
 
or her
 
respective signature
 
appearing below
 
and in
 
such Loan
 
Documents is
 
such
officer’s genuine signature.
Name
Office
Signature
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
_______________________
 
 
IN
 
WITNESS
 
WHEREOF,
 
the
 
undersigned
 
has
 
hereunto
 
set
 
his
 
hand
 
as
 
of
 
the
 
____
 
day
 
of
____________ __, 2022.
 
Name:
Title:
 
 
 
 
 
EXHIBIT F
COMPLIANCE CERTIFICATE
Reference
 
is
 
made
 
to
 
the
 
Credit
 
Agreement
 
dated
 
as
 
of
 
_________
 
__,
 
2022
 
(as
 
modified
 
and
supplemented and in effect from time to
 
time, the “Credit Agreement”) among The Cato
 
Corporation, the Initial
Guarantors,
 
Xxxxx
 
Fargo
 
Bank,
 
National
 
Association,
 
as
 
Issuing Bank
 
and
 
Agent
 
and
 
the
 
Banks
 
listed
 
on
 
the
signature
 
pages thereof.
 
Capitalized
 
terms
 
used
 
herein shall
 
have the
 
meanings
 
ascribed
 
thereto
 
in
 
the
 
Credit
Agreement.
Pursuant to Section 5.01(e) of the Credit Agreement, the undersigned hereby certifies that:
1.
 
He is a duly elected Secretary of the Borrower.
2.
 
The
 
Loan Parties
 
have kept,
 
observed, performed
 
and fulfilled
 
in all
 
material respects
 
each and
every covenant,
 
obligation and agreement
 
binding upon
 
any Loan
 
Party in
 
the Credit Agreement
 
or the
 
other Loan
Documents.
3.
Attached to
 
this Certificate
 
as Attachment
 
A is
 
a Compliance
 
Checklist calculating
 
the financial
covenants set forth in the Credit Agreement as of _________ __, 2022 (the “Compliance Date”).
4.
 
Attached to this Certificate as Attachment B is
 
a list of the Subsidiaries of the
 
Borrower as of the
date hereof.
5.
No Default or Event of Default is in existence on and as of the date hereof.
IN WITNESS
 
WHEREOF
, the
 
undersigned has
 
executed and
 
delivered this
 
Certificate as
 
of the
 
____
day of ____________ __, 2022.
THE CATO
 
CORPORATION
By:
 
Name:
 
Title:
 
ATTACHMENT
 
A
COMPLIANCE CHECKLIST
(see attached)
ATTACHMENT
 
B
SUBSIDIARIES
CatoWest,
 
LLC
Cedar Hill National Bank
CHW,
 
LLC
Cato Southwest, Inc.
CatoSouth LLC
Providence Insurance Company, Limited
CaDel LLC
xxxxxxxx.xxx, LLC
Cato of Texas X.X.
Xxxx WO LLC
 
Cato of Florida L.L.C.
 
Cato of Tennessee, LLC
 
Cato of Virginia,
 
LLC
 
Cato of North Carolina, LLC
 
Cato of Illinois, LLC
 
Cato of South Carolina, LLC
 
Ohio Cato Stores, LLC
 
Cato of Georgia, LLC
Cato Overseas Limited
Shanghai Cato Overseas Business
Consultancy Company, Limited
Cato Overseas Services Limited
Cato Employee Services Management, LLC
Cato Employee Services X.X.
Xxxx Services Vietnam Company Limited
Cato Land Development, LLC
Fort Mill Land Development
 
EXHIBIT G
JOINDER AND REAFFIRMATION
 
AGREEMENT
THIS
 
JOINDER
 
AND
 
REAFFIRMATION
 
AGREEMENT
 
(the
 
“Agreement”),
 
dated
 
as
 
of
____________,
 
20__,
 
is
 
by
 
and
 
between
 
[_______________]
 
(the
 
“New
 
Guarantor”),
 
THE
 
CATO
CORPORATION
 
(the “Borrower”) and XXXXX FARGO BANK, NATIONAL
 
ASSOCIATION
 
(the “Agent”).
The Borrower, the
 
Guarantors, the Banks and the
 
Agent have entered into that
 
certain Credit Agreement
dated as
 
of ____________
 
__, 2022
 
(as amended,
 
modified, supplemented,
 
renewed and
 
extended, the
 
“Credit
Agreement”).
 
All of the defined terms in the Credit Agreement are incorporated herein by reference.
The New Guarantor is a Subsidiary.
 
The Borrower and the New Guarantor
 
have requested that the New
Guarantor
 
become
 
a
 
Guarantor
 
under
 
the
 
Credit
 
Agreement,
 
in
 
accordance
 
with
 
Section
 
5.26
 
of
 
the
 
Credit
Agreement.
Accordingly, the Borrower,
 
New Guarantor and Agent hereby agree as follows:
1.
 
The
 
New
 
Guarantor
 
and
 
the
 
Borrower
 
hereby
 
acknowledge,
 
agree
 
and
 
confirm
 
that,
 
by
 
their
execution of this
 
Joinder Agreement,
 
the New
 
Guarantor will
 
be deemed to
 
be a party
 
to the
 
Credit Agreement
and a “Guarantor”
 
for all purposes
 
of the Credit
 
Agreement, the Note
 
and the other
 
Loan Documents, and
 
shall
have all
 
of the
 
obligations
 
of a
 
Guarantor thereunder
 
as if
 
it had
 
executed the
 
Credit Agreement
 
and the
 
other
Loan Documents.
 
The
 
New Guarantor
 
assumes and
 
agrees to
 
be bound
 
by and
 
comply with,
 
all of
 
the terms,
provisions and
 
conditions contained
 
in the
 
Credit Agreement
 
and the
 
other Loan
 
Documents and
 
all duties
 
and
obligations
 
thereunder,
 
as
 
fully
 
and
 
completely
 
as
 
all
 
other
 
Guarantors
 
thereunder,
 
jointly
 
and
 
severally,
individually and collectively, with all other Guarantors, including without
 
limitation (i) all of the representations,
warranties,
 
covenants,
 
undertakings
 
and
 
obligations
 
set
 
forth
 
in
 
the
 
Credit
 
Agreement
 
and
 
the
 
other
 
Loan
Documents, and (ii) all waivers set forth in the Credit Agreement and the other Loan Documents.
2.
 
The New Guarantor has received a copy of the Credit
 
Agreement and the Schedules and Exhibits
thereto and the other Loan Documents.
 
The information on the Exhibits and Schedules to the Credit
 
Agreement
are amended to provide the information shown on the attached Schedule A.
3.
The New Guarantor
 
hereby waives presentment,
 
demand, protest, acceptance,
 
notice of demand,
protest and nonpayment and
 
any other notice required
 
by law relative to
 
the Credit Agreement, the
 
Obligations,
the Notes and the other Loan Documents.
4.
 
This Agreement may be
 
executed in counterparts, each
 
of which shall constitute
 
an original but all
of which when taken together shall constitute one contract.
5.
 
Except
 
as
 
set
 
forth
 
expressly
 
herein,
 
all
 
terms
 
of
 
the
 
Credit
 
Agreement
 
and
 
the
 
other
 
Loan
Documents,
 
shall
 
be
 
and
 
remain
 
in
 
full
 
force
 
and
 
effect
 
and
 
shall
 
constitute
 
the
 
legal,
 
valid,
 
binding
 
and
enforceable
 
obligations
 
of
 
the
 
Borrower
 
and
 
Guarantors
 
to
 
Agent
 
and
 
Banks.
 
To
 
the
 
extent
 
any
 
terms
 
and
conditions in
 
any of
 
the Loan
 
Documents shall
 
contradict or
 
be in
 
conflict with
 
any terms
 
or conditions
 
of the
Credit Agreement,
 
after giving
 
effect to
 
this Joinder
 
Agreement, such
 
terms and
 
conditions are
 
hereby deemed
modified and amended accordingly to
 
reflect the terms and
 
conditions of the Credit Agreement
 
as modified and
amended hereby.
 
In any event,
 
this Joinder Agreement and
 
the documents executed
 
in connection therewith
 
shall
not, individually or collectively, constitute a novation.
6.
To
 
induce
 
the
 
Agent
 
and
 
Banks
 
to
 
enter
 
into
 
this
 
Joinder
 
Agreement,
 
the
 
Borrower
 
and
 
New
Guarantor
 
hereby
 
(a)
 
restate
 
and
 
renew
 
each
 
and
 
every
 
representation
 
and
 
warranty
 
heretofore
 
made
 
by
 
them
under, or in connection with the execution and delivery
 
of, the Credit Agreement and the other Loan
 
Documents;
 
 
(b) restate,
 
ratify and
 
reaffirm
 
each and
 
every term
 
and condition
 
set forth
 
in the
 
Credit Agreement
 
and in
 
the
Loan Documents,
 
effective as of
 
the date
 
hereof; (c) acknowledge
 
and agree
 
that, as
 
of the
 
date hereof,
 
there exists
no right of offset,
 
defense, counterclaim or objection
 
in favor of the
 
Borrower as against the
 
Agent or any Bank
with respect
 
to the payment
 
or performance
 
of its Obligations;
 
and (d) certifies
 
that no Default
 
or Event of
 
Default
exists.
7.
 
This Joinder Agreement
 
shall be governed
 
by,
 
and construed in
 
accordance with, the
 
laws of the
State of North Carolina.
8.
 
Borrower and
 
New Guarantor agree
 
to pay upon
 
request the actual
 
costs and
 
expenses of the
 
Agent
and Banks
 
reasonably incurred
 
in connection
 
with the
 
preparation, execution,
 
delivery and
 
enforcement of
 
this
Joinder Agreement and
 
all other Loan
 
Documents executed in
 
connection herewith, the
 
closing hereof, and
 
any
other transactions
 
contemplated hereby, including
 
the reasonable
 
fees and
 
out-of-pocket expenses
 
of Agent’s legal
counsel.
IN WITNESS WHEREOF,
 
the New Guarantor and the Borrower have caused
 
this Joinder Agreement to
be duly executed by its authorized officers for the benefit of the Agent and the Banks as of the day
 
and year first
above written.
NEW GUARANTOR
[
 
](SEAL)
By:
 
Title:
 
 
 
 
THE CATO
 
CORPORATION
By:
 
Title:
 
XXXXX FARGO
 
BANK, NATIONAL
 
ASSOCIATION,
 
as Agent
and as a Bank
By:
 
(SEAL)
Title:
[OTHER BANK]
By:
 
(SEAL)
Title:
 
 
Schedule A to Joinder Agreement
[Provide Information here to update Schedules and Exhibits
to Credit Agreement and other Loan Documents]
 
 
EXHIBIT H
ASSIGNMENT AND ACCEPTANCE
Dated ____________ __, _____
Reference is made to the Credit Agreement dated as of ____________ __, 2022 (together with all
amendments
 
and
 
modifications
 
thereto,
 
the
 
“Credit
 
Agreement”)
 
among
 
The
 
Cato
 
Corporation,
 
the
 
Initial
Guarantors,
 
Xxxxx
 
Fargo
 
Bank,
 
National
 
Association,
 
as
 
Issuing Bank
 
and
 
Agent
 
and
 
the
 
Banks
 
listed
 
on
 
the
signature pages thereof.
 
Terms defined in the Credit Agreement are used herein with the same meaning.
____________________________________________________
 
(the
 
“Assignor”)
 
and
______________________________________________ (the “Assignee”) agree as follows:
1.
 
The Assignor hereby
 
sells and
 
assigns to the
 
Assignee, without
 
recourse to
 
the Assignor,
and
 
the
 
Assignee
 
hereby
 
purchases
 
and
 
assumes
 
from
 
the
 
Assignor,
 
a
 
_____%
 
interest
 
in
 
and
 
to
 
all
 
of
 
the
Assignor’s
 
rights
 
and
 
obligations
 
under
 
the
 
Credit
 
Agreement
 
as
 
of
 
the
 
Effective
 
Date
 
(as
 
defined
 
below)
(including, without limitation; (i) a _____% interest (which on the
 
Effective Date hereof is $__________) in
 
the
Assignor’s
 
Revolving
 
Credit
 
Commitment;
 
(ii) a_____%
 
interest
 
(which
 
on
 
the
 
Effective
 
Date
 
hereof
 
is
$__________) in
 
the Revolving
 
Credit Advances
 
owing to
 
the Assignor;
 
(iii) a
 
_____% interest
 
(which on
 
the
Effective Date hereof
 
is $__________)
 
in the Letter
 
of Credit
 
Advances owing
 
to the Assignor;
 
and (iv)
 
a _____%
interest
 
(which on
 
the
 
Effective
 
Date hereof
 
is
 
$__________)
 
in
 
the
 
Assignor’s
 
Letter of
 
Credit
 
Commitment
(including without limitation a _____% interest in the Assignor’s obligations under Section 2.03(c) of the Credit
Agreement).
2.
The Assignor (i) makes
 
no representation or warranty
 
and assumes no responsibility
 
with
respect to any statements, warranties or representations made in or
 
in connection with the Credit Agreement, any
other
 
instrument
 
or
 
document
 
furnished
 
pursuant
 
thereto
 
or
 
the
 
execution,
 
legality,
 
validity,
 
enforceability,
genuineness, sufficiency or value of the Credit Agreement, any other Loan Document or any other instrument or
document
 
furnished
 
pursuant
 
thereto,
 
other
 
than
 
that
 
it
 
is
 
the
 
legal
 
and
 
beneficial
 
owner
 
of
 
the
 
interest
 
being
assigned by it hereunder, that such interest is free and clear of any adverse claim and
 
that as of the date hereof its
Revolving
 
Credit
 
Commitment
 
(without
 
giving
 
effect
 
to
 
assignments
 
thereof
 
which
 
have
 
not
 
yet
 
become
effective) is $__________ and the aggregate outstanding principal amount of Revolving Credit Advances owing
to it
 
(without giving
 
effect to
 
assignments thereof
 
which have
 
not yet
 
become effective)
 
is $__________,
 
as of
the date hereof its Letter of Credit Commitment (without
 
giving effect to assignments thereof which have not yet
become effective) is $__________, and the aggregate outstanding principal amount of Letter
 
of Credit Advances
owing to it (without giving effect
 
to assignments thereof which have not
 
yet become effective) is $__________;
(ii) makes no representation or warranty and
 
assumes no responsibility with respect to
 
the financial condition of
the
 
Borrower
 
or
 
the
 
performance
 
or
 
observance
 
by
 
the
 
Borrower
 
of
 
any
 
of
 
its
 
obligations
 
under
 
the
 
Credit
Agreement, any other Loan Document or
 
any other instrument or document furnished
 
pursuant thereto; and (iii)
attaches the Revolving
 
Credit Note
 
referred to in
 
paragraph 1 above and
 
requests that
 
the Agent exchange
 
such
Note
 
as
 
follows:
 
[a
 
new
 
Revolving
 
Credit
 
Note
 
dated
 
____________,
 
____
 
in
 
the
 
principal
 
amount
 
of
______________ payable to the order of the Assignee] [a Revolving Credit Note dated
 
____________, _____ in
the principal amount of $____________ payable to the order of the Assignor].
3.
 
The Assignee
 
(i) confirms
 
that it
 
has received
 
a
 
copy of
 
the Credit
 
Agreement, together
with
 
copies
 
of
 
the
 
financial
 
statements
 
referred
 
to
 
in
 
Section
 
4.10(a)
 
thereof
 
(or
 
any
 
more
 
recent
 
financial
statements of
 
the Borrower
 
delivered pursuant
 
to Section
 
5.01(a) or
 
(b) thereof)
 
and such
 
other documents
 
and
information as
 
it has
 
deemed appropriate
 
to make
 
its own
 
credit analysis
 
and decision
 
to enter
 
into this
 
Assignment
and Acceptance; (ii) agrees that
 
it will, independently and
 
without reliance upon the
 
Agent, the Assignor or
 
any
other Bank
 
and based
 
on such
 
documents and
 
information as
 
it shall
 
deem appropriate
 
at the
 
time, continue
 
to
 
 
 
 
make its own credit decisions in taking or not taking action under the Credit Agreement;
 
(iii) confirms that it is a
bank or financial institution; (iv) appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under the Credit Agreement as
 
are delegated to the Agent by the terms thereof, together
with such
 
powers
 
as are
 
reasonably incidental
 
thereto;
 
(v)
 
agrees
 
that it
 
will
 
perform in
 
accordance
 
with their
terms all of
 
the obligations
 
which by the
 
terms of
 
the Credit Agreement
 
are required
 
to be performed
 
by it
 
as a
Bank; (vi)
 
specifies as
 
its Lending
 
Office (and
 
address for
 
notices) the
 
office
 
set forth
 
beneath its
 
name on
 
the
signature
 
pages
 
hereof,
 
(vii)
 
represents
 
and
 
warrants
 
that
 
the
 
execution,
 
delivery
 
and
 
performance
 
of
 
this
Assignment
 
and
 
Acceptance
 
are
 
within
 
its
 
corporate
 
powers
 
and
 
have
 
been
 
duly
 
authorized
 
by
 
all
 
necessary
corporate action.
4.
The Effective
 
Date for
 
this
 
Assignment and
 
Acceptance shall
 
be _______________
 
(the
“Effective Date”).
 
Following the execution of this Assignment and Acceptance, it will be
 
delivered to the Agent
for execution and acceptance by
 
the Agent [and to
 
the Issuing Bank for
 
execution by the Issuing
 
Bank]
1
 
[and to
the Borrower for execution by the Borrower].
2
5.
 
Upon such execution and acceptance by the Agent
 
[and execution by the Borrower]
2
 
[and
execution by the Issuing Bank]
1
, from and after the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and,
 
to the
 
extent rights
 
and obligations
 
have been
 
transferred to
 
it by
 
this Assignment
 
and Acceptance,
have
 
the
 
rights
 
and
 
obligations
 
of
 
a
 
Bank
 
thereunder
 
and
 
(ii)
 
the
 
Assignor
 
shall,
 
to
 
the
 
extent
 
its
 
rights
 
and
obligations have been transferred to the Assignee by
 
this Assignment and Acceptance, relinquish its rights (other
than under
 
Section 9.03
 
of the
 
Credit Agreement)
 
and be
 
released from
 
its obligations
 
under the
 
Credit Agreement.
6.
 
Upon such execution
 
and acceptance by
 
the Agent
 
[and execution by
 
the Borrower] [and
execution by the
 
Issuing Bank] from
 
and after the
 
Effective Date, the
 
Agent shall
 
make all payments
 
in respect
of the
 
interest assigned
 
hereby to
 
the Assignee.
 
The Assignor
 
and Assignee
 
shall make
 
all appropriate
 
adjustments
in payments for periods prior to such acceptance by the Agent directly between themselves.
7.
 
This Assignment and Acceptance shall be governed by, and construed in accordance with,
the laws of the State of North Carolina.
[NAME OF ASSIGNOR]
By:
 
Title:
[NAME OF ASSIGNEE]
By:
 
Title:
Lending Office:
[Address]
 
1
 
If the Letter of Credit Commitment is being assigned.
2
 
If the Assignee is not a Bank or an Affiliate of a Bank prior to the Effective
 
Date.
 
 
 
 
XXXXX FARGO BANK, NATIONAL
 
ASSOCIATION
 
,
 
as Agent
By:
 
Title:
THE CATO
 
CORPORATION
3
By:
 
Title:
3
 
If the Assignee is not a Bank or an Affiliate of a Bank prior to the Effective
 
Date, or if no Default has occurred and is continuing.
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Filed: May 23rd, 2022
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