UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549



FORM 8-K

CURRENT REPORT



Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934



August 6, 2020

Date of Report (Date of earliest event reported)



NCS Multistage Holdings, Inc.

(Exact name of Registrant as specified in its charter)





19350 State Highway 249, Suite 600

Houston, Texas 77070

(Address of principal executive offices) (Zip code)



(281) 453-2222

(Registrant’s telephone number, including area code)



Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:





Securities registered pursuant to Section 12(b) of the Act:





Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).





If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☑

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Item 1.01Entry into a Material Definitive Agreement.



On August 6, 2020, NCS Multistage Holdings, Inc. (the “Company”) entered into Amendment No. 1 to Second Amended and Restated Credit Agreement (the “Amendment”) amending its Second Amended and Restated Credit Agreement dated as of May 1, 2019 (as amended by the Amendment, the “Amended Credit Agreement”) with Pioneer Investment, Inc., as borrower (the “U.S. Borrower”), NCS Multistage Inc., as borrower (the “Canadian Borrower”, together with the U.S. Borrower, the “Borrowers”), Pioneer Intermediate, Inc. (together with the Company, the “Parent Guarantors”), certain subsidiaries of the Borrowers, the lenders party thereto, Wells Fargo Bank, National Association as administrative agent in respect of the U.S. Facility (as defined in the Amended Credit Agreement) and Wells Fargo Bank, National Association, Canadian Branch, as administrative agent in respect of the Canadian Facility (as defined in the Amended Credit Agreement) (the U.S. Facility and the Canadian Facility, collectively, the “Facilities”).



The Amendment (i) reduced the US Commitments (as defined in the Amended Credit Agreement) from $50,000,000 to $25,000,000 and (ii) reduced the Canadian Commitments (as defined in the Amended Credit Agreement) from $25,000,000 to $0. The Canadian Borrower may make borrowings under the U.S. Facility, subject to a $15,000,000 sublimit. The Amendment also limits total outstanding credit exposure of the lenders under the Facilities to a borrowing base calculated based on eligible receivables. The Eurocurrency Rate (as defined in the Amended Credit Agreement) applicable margin will be between 2.75% and 3.75% as a result of an increase, due to the Amendment, of 0.25% in the highest possible applicable margin, depending on the Company’s leverage ratio. The maturity date of the Amended Credit Agreement remains May 1, 2023.



The Amendment (i) eliminated financial covenants requiring compliance with maximum leverage, minimum interest coverage and minimum asset coverage tests, (ii) added new financial covenants requiring compliance with minimum liquidity and, in certain circumstances of reduced liquidity, minimum fixed charge coverage tests during any reduced liquidity period and (iii) added new covenants, including a weekly sweep of available cash over a specified threshold, more stringent limits on capital expenditures and enhanced financial reporting requirements.



The Amendment also narrowed or eliminated several exceptions to prohibitions on the creation of liens, the incurrence of indebtedness, the making of investments and restricted payments and other negative covenants, rendering these covenants generally more restrictive. The Amendment reduced the dollar thresholds above which certain cross-defaults and adverse employee benefit plan events constitute events of default. The Amendment added a new event of default if the indebtedness of Repeat Precision, LLC exceeds $10,000,000.



Pursuant to amended guaranty and security documents entered into concurrently with the Amendment, the obligations of the Borrowers under the Facilities are guaranteed by the Parent Guarantors, as well as each of the other existing and future direct and indirect restricted subsidiaries of the Company organized under the laws of the United States and Canada (subject to certain exceptions), and are secured by substantially all of the assets of the Parent Guarantors, the Borrowers and such other subsidiary guarantors, in each case subject to certain exceptions and permitted liens.



The Amendment is attached hereto as Exhibit 10.1 and is incorporated herein by reference. The foregoing summary of the Amendment and the Amended Credit Agreement does not purport to be a complete statement of the parties’ rights and obligations thereunder, and is qualified in its entirety by reference to Exhibit 10.1 hereto and Exhibit 10.1 to the Company’s Form 8-K regarding the Second Amended and Restated Credit Agreement filed on May 6, 2019.



Item 2.03Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.



The information provided in Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference in this Item 2.03.

 

Item 9.01Financial Statements and Exhibits.



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SIGNATURES



Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.







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AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT

This AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of August 6, 2020, (the “Effective Date”) is by and among NCS Multistage Holdings, Inc., a Delaware corporation (the “Parent”), Pioneer Intermediate, Inc., a Delaware corporation (the “Intermediate Parent”), Pioneer Investment, Inc., a Delaware corporation (the “US Borrower”), NCS Multistage Inc., a corporation incorporated pursuant to the laws of the Province of Alberta, Canada (the “Canadian Borrower” and together with the US Borrower, the “Borrowers”), the subsidiaries of the US Borrower party hereto (together with the Parent and the Intermediate Parent, each a “Guarantor” and collectively, the “Guarantors”), the Lenders (as defined below) party hereto, Wells Fargo Bank, National Association, as US administrative agent (in such capacity, the “US Administrative Agent”) for the Lenders, Swing Line Lender, and Issuing Lender, Wells Fargo Bank, National Association, Canadian Branch, as Canadian administrative agent (in such capacity, the “Canadian Administrative Agent” and, together with the US Administrative Agent, the “Administrative Agents”) for the Lenders, and each other Person party hereto.

RECITALS

NOW THEREFORE, in consideration of the premises and the mutual covenants, representations and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

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THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

IN EXECUTING THIS AGREEMENT, EACH PARTY HERETO HEREBY WARRANTS AND REPRESENTS IT IS NOT RELYING ON ANY STATEMENT OR REPRESENTATION OTHER THAN THOSE IN THIS AGREEMENT AND IS RELYING UPON ITS OWN JUDGMENT AND ADVICE OF ITS ATTORNEYS.

[SIGNATURES BEGIN ON NEXT PAGE]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the day and year first above written.

US BORROWER:

PIONEER INVESTMENT, INC.


By: /s/ Ryan Hummer
Name: Ryan Hummer
Title:  Chief Financial Officer

CANADIAN BORROWER:

NCS MULTISTAGE INC.


By: /s/ Ryan Hummer
Name: Ryan Hummer
Title: .Chief Financial Officer

PARENT:

NCS MULTISTAGE HOLDINGS, INC.


By: /s/ Ryan Hummer
Name: Ryan Hummer
Title:  Chief Financial Officer

INTERMEDIATE PARENT:

PIONEER INTERMEDIATE, INC.


By: /s/ Ryan Hummer
Name: Ryan Hummer
Title:  Chief Financial Officer

OTHER GUARANTORS:

PIONEER NCS ENERGY HOLDCO, LLC


By: /s/ Ryan Hummer
Name: Ryan Hummer
Title:  Chief Financial Officer

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NCS MULTISTAGE, LLC


By: /s/ Ryan Hummer
Name: Ryan Hummer
Title:  Chief Financial Officer

SPECTRUM TRACER SERVICES, LLC


By: /s/ Ryan Hummer
Name: Ryan Hummer
Title:  Chief Financial Officer

STS LOGISTICS AND ANALYTICS LLC


By: /s/ Ryan Hummer
Name: Ryan Hummer
Title:  Chief Financial Officer

STS TRACER SERVICES LTD.


By: /s/ Ryan Hummer
Name: Ryan Hummer
Title:  Chief Financial Officer

 

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ADMINISTRATIVE AGENTS/LENDERS:

WELLS FARGO BANK, NATIONAL ASSOCIATION, as US Administrative Agent, the Issuing Lender, the Swing Line Lender, and a US Facility Lender


By: /s/ Corbin Womac
Name: Corbin Womac
Title:    Director

WELLS FARGO BANK, NATIONAL ASSOCIATION, CANADIAN BRANCH as Canadian Administrative Agent and a Canadian Facility Lender


By: /s/ Lindy Couillard
Name:Lindy Couillard
Title:Director

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JPMORGAN CHASE BANK, N.A., as a  US Facility Lender



By: /s/ Kirk Wolverton
Name: Kirk Wolverton
Title:   Authorized Officer

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JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as a Canadian Facility Lender



By:   /s/ Auggie Marchetti
Name: Auggie Marchetti
Title:   Authorized Officer

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HSBC BANK CANADA, as a US Facility Lender

By:  /s/ Sean Cochrane
Name: Sean Cochrane
Title:   Director, Energy Financing


By:  /s/ Bruce Robinson
Name: Bruce Robinson
Title:    Vice President, Energy Financing

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HSBC BANK CANADA, as a Canadian Facility Lender

By:  /s/ Sean Cochrane
Name: Sean Cochrane
Title:   Director, Energy Financing


By:  /s/ Bruce Robinson
Name: Bruce Robinson
Title:    Vice President, Energy Financing

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SECOND AMENDED AND RESTATED CREDIT AGREEMENT

dated as of May 1, 2019,

among

NCS MULTISTAGE HOLDINGS, INC.
as Parent,

PIONEER INTERMEDIATE, INC.
as Intermediate Parent,

PIONEER INVESTMENT, INC.
as US Borrower,

NCS MULTISTAGE INC.
as Canadian Borrower,

WELLS FARGO BANK, NATIONAL ASSOCIATION,
as US Administrative Agent, Issuing Lender and Swing Line Lender,

WELLS FARGO BANK, NATIONAL ASSOCIATION, CANADIAN BRANCH,
as Canadian Administrative Agent,

and

THE LENDERS PARTY HERETO FROM TIME TO TIME
as Lenders

US$25,000,000

Wells Fargo Securities, LLC
as Sole Lead Arranger and Sole Bookrunner

JPMORGAN CHASE BANK, N.A.
as Syndication Agent

HSBC BANK CANADA
as Documentation Agent

 

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ARTICLE 1 DEFINITIONS AND ACCOUNTING TERMS.............................................................................................1

Section 1.1.Certain Defined Terms1

Section 1.2.Computation of Time Periods45

Section 1.3.Accounting Terms; Changes in GAAP45

Section 1.4.Classes and Types of Advances45

Section 1.5.Miscellaneous46

Section 1.6.Foreign Currency46

Section 1.7.Pro Forma Calculations47

Section 1.8.Non‑Business Day Payments and Performance48

Section 1.9.Rates48

Section 1.10.Divisions48

ARTICLE 2 CREDIT FACILITIES.............................................................................................................................48

Section 2.1.US and Canadian Commitments48

Section 2.2.Letters of Credit51

Section 2.3.Swing Line Advances58

Section 2.4.Advances61

Section 2.5.Prepayments65

Section 2.6.Repayment68

Section 2.7.Fees68

Section 2.8.Interest69

Section 2.9.Illegality70

Section 2.10.Breakage Costs71

Section 2.11.Increased Costs71

Section 2.12.Payments and Computations73

Section 2.13.Taxes75

Section 2.14.Replacement of Lenders79

Section 2.15.Defaulting Lenders80

Section 2.16.Cash Collateral83

Section 2.17.Increase in Commitments84

Section 2.18.Bankers’ Acceptances85

ARTICLE 3 Conditions...............................................................................................................................................87

Section 3.1.Conditions Precedent to the Effectiveness of this Agreement87

Section 3.2.Conditions Precedent to Each Borrowing and to Each Issuance, Extension or Renewal of a Letter of Credit90

Section 3.3.Determinations under Sections 3.1 and 3.2.91

ARTICLE 4 Representations and warranties.................................................................................................................91

Section 4.1.Organization.91

Section 4.2.Authorization.91

Section 4.3.Enforceability.91

Section 4.4.Financial Condition.92

Section 4.5.Ownership and Liens; Real Property.92

Section 4.6.True and Complete Disclosure.92

Section 4.7.Litigation.93

Section 4.8.Compliance with Agreements.93

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Section 4.9.Pension Plans.93

Section 4.10.Environmental Condition.93

Section 4.11.Subsidiaries.94

Section 4.12.Investment Company Act.94

Section 4.13.Taxes.94

Section 4.14.Permits, Licenses, etc.95

Section 4.15.Regulations T, U and X95

Section 4.16.Insurance.95

Section 4.17.Security Interest.95

Section 4.18.Solvency.95

Section 4.19.OFAC; Anti-Terrorism.95

Section 4.20.Eligible Receivables.96

ARTICLE 5 Affirmative covenants...............................................................................................................................96

Section 5.1.Organization.96

Section 5.2.Reporting.96

Section 5.3.Insurance.102

Section 5.4.Compliance with Laws.103

Section 5.5.Taxes.104

Section 5.6.New Subsidiaries; Security.104

Section 5.7.Deposit Accounts/Securities/Commodities Accounts.105

Section 5.8.Records; Inspection.106

Section 5.9.Maintenance of Property.106

Section 5.10.Further Assurances.107

Section 5.11.Designations with Respect to Subsidiaries; Unrestricted Subsidiaries.107

Section 5.12.Use of Proceeds; Use of Letters of Credit.108

Section 5.15.Appraisals; Field Exams.109

Section 5.16.Post-Closing.110

ARTICLE 6 Negative covenants...............................................................................................................................110

Section 6.1.Debt.110

Section 6.2.Liens.112

Section 6.3.Investments.114

Section 6.4.Acquisitions116

Section 6.5.Agreements Restricting Liens.116

Section 6.6.Corporate Actions; Organizational Documents; Fiscal Year.117

Section 6.7.Disposition of Assets.119

Section 6.8.Restricted Payments120

Section 6.9.Affiliate Transactions.121

Section 6.10.Line of Business.121

Section 6.11.Sale and Leaseback Transactions.121

Section 6.12.Operating Leases.121

Section 6.13.Limitation on Hedging.121

Section 6.14.Landlord Agreements.122

Section 6.15.Reserved.122

Section 6.16.Financial Covenants.122

Section 6.17.Capital Expenditures.123

Section 6.18.Prepayment of Certain Debt and Other Obligations.123

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ARTICLE 7 Default and remedies.............................................................................................................................123

Section 7.1.Events of Default.123

Section 7.2.Optional Acceleration of Maturity.125

Section 7.3.Automatic Acceleration of Maturity.126

Section 7.4.Set-off.126

Section 7.5.Remedies Cumulative, No Waiver.127

Section 7.6.Application of Payments.127

Section 7.7.Equity Right to Cure.128

Section 7.8.Currency Conversion After Maturity129

ARTICLE 8 The administrative agents.......................................................................................................................129

Section 8.1.Appointment, Powers, and Immunities.129

Section 8.2.Reliance by Administrative Agent.131

Section 8.3.Delegation of Duties.131

Section 8.4.Indemnification.132

Section 8.5.Non-Reliance on Administrative Agent and Other Lenders.133

Section 8.6.Resignation of Administrative Agent, Issuing Lender or Swing Line Lender.133

Section 8.7.Collateral Matters.135

Section 8.8.No Other Duties, Etc.136

Section 8.10.Credit Bidding.136

Section 8.11.Certain ERISA Matters.137

ARTICLE 9 miscellaneous.......................................................................................................................................138

Section 9.1.Costs and Expenses.138

Section 9.2.Indemnification; Waiver of Damages.139

Section 9.3.Waivers and Amendments.141

Section 9.4.Severability.143

Section 9.5.Survival of Representations and Obligations.143

Section 9.6.Binding Effect.143

Section 9.7.Lender Assignments and Participations.143

Section 9.8.Confidentiality.148

Section 9.9.Notices, Etc.149

Section 9.10.Usury Not Intended.150

Section 9.11.Usury Recapture.151

Section 9.12.Payments Set Aside.151

Section 9.13.Governing Law152

Section 9.14.Submission to Jurisdiction; Waiver of Venue; Appointment of Agent for Service of Process.152

Section 9.15.Execution in Counterparts.153

Section 9.16.Electronic Execution of Assignments.153

Section 9.17.Waiver of Jury.153

Section 9.18.USA Patriot Act and Beneficial Ownership Regulation.153

Section 9.19.Conflicts with Other Credit Documents.154

Section 9.20.Judgment Currency.154

Section 9.21.Subordination Agreements.154

Section 9.22.Confirmation of Flood Policies and Procedures.154

Section 9.23.Keepwell.154

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Section 9.24.No Fiduciary Duty.155

Section 9.25.Cashless Settlement.155

Section 9.26.Amendment and Restatement.155

Section 9.27.Acknowledgement and Consent to Bail-In of EEA Financial Institutions.155

Section 9.28.Obligations Joint and Several and Unconditional156

Section 9.29.Integration.158



EXHIBITS:

Exhibit A – Form of Assignment and Acceptance

Exhibit B– Form of Compliance Certificate

Exhibit C – Form of Guaranty Agreement

Exhibit D-1 – Form of US Note

Exhibit D-2– Form of Canadian Note

Exhibit D-3– Form of Swing Line Note

Exhibit E-1 – Form of Notice of US Borrowing

Exhibit E-2 – Form of Notice of Canadian Borrowing

Exhibit F – Form of Notice of Continuation or Conversion

Exhibit G – Form of Notice of Optional Payment

Exhibit H-1 – Form of US Pledge and Security Agreement

Exhibit H-2– Form of Canadian Security Agreement
Exhibit I-1-I-4 – Forms of US Tax Compliance Certificates
Exhibit J– Form of Solvency Certificate

Exhibit K– Form of Borrowing Base Certificate

SCHEDULES:

Schedule I – Pricing Schedule

Schedule II – Commitments

Schedule III – Contact Information

Schedule 1.1(a)– Disqualified Institutions

Schedule 1.1(b)– Existing Letters of Credit

Schedule 4.1– Organizational Information

Schedule 4.5– Owned and Leased Real Properties

Schedule 4.11 – Subsidiaries

Schedule 5.6– Additional Conditions and Requirements for New Subsidiaries

Schedule 6.1– Existing Permitted Debt

Schedule 6.2– Existing Permitted Liens

Schedule 6.12– Existing Operating Leases

Schedule 6.19– Subordination Terms



 

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SECOND AMENDED AND RESTATED CREDIT AGREEMENT

This Second Amended and Restated Credit Agreement dated as of May 1, 2019 (the “Agreement”) is among (a) Pioneer Investment, Inc., a Delaware corporation (“US Borrower”), (b) NCS Multistage Inc., a corporation incorporated pursuant to the laws of the Province of Alberta, Canada (the “Canadian Borrower”; and together with the US Borrower, collectively, the “Borrowers”), (c) NCS Multistage Holdings, Inc., a Delaware corporation (the “Parent”) (d) Pioneer Intermediate, Inc., a Delaware corporation (“Intermediate Parent” and together with the Parent, collectively, the “Parent Guarantors”), (e) the Lenders (as defined below), (f) Wells Fargo Bank, National Association, as Swing Line Lender (as defined below), the Issuing Lender (as defined below), and as the US Administrative Agent (as defined below) for the Lenders, and (g) Wells Fargo Bank, National Association, Canadian Branch, as the Canadian Administrative Agent (as defined below) for the Lenders.

RECITALS

The Borrowers, the Parent Guarantors, the Swing Line Lender, the Issuing Lender, the Lenders, and the Administrative Agents (as defined below) have previously executed and delivered that certain Amended and Restated Credit Agreement, dated as of May 4, 2017 (as heretofore amended or otherwise modified, the “Existing Credit Agreement”).

The parties to the Existing Credit Agreement desire, through the execution of this Agreement, to amend and restate the Existing Credit Agreement so that it shall hereafter read in its entirety as hereinafter set forth.

It is the intention of the parties hereto that this Agreement is an amendment and restatement of the Existing Credit Agreement, not a novation of the Existing Credit Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto hereby agree that (i) the Existing Credit Agreement is amended and restated (but not novated) in its entirety as set forth herein and (ii) further agree as follows:

Certain Defined Terms

.  The following terms shall have the following meanings (unless otherwise indicated, such meanings to be equally applicable to both the singular and plural forms of the terms defined):

“13-Week Budget” means a thirteen-week rolling operating budget and cash flow forecast, which shall reflect the Parent’s good faith projection of all weekly cash receipts and disbursements in connection with the operation of the Credit Parties’ and their respective Restricted Subsidiaries’ business during such thirteen-week period, including but not limited to, collections, payroll, Capital Expenditures and other major cash outlays.

“Acceptable Security Interest” means a security interest which (a) exists in favor of the applicable Administrative Agent for its benefit and the ratable benefit of the Secured Parties or the Canadian Secured Parties, as applicable, (b) is superior to all other security interests (other than as to Excluded Perfection Collateral and other than Permitted Liens; provided that no intention to expressly subordinate the Lien of the Administrative Agents and the Secured Parties pursuant to the Security Documents is to be implied or expressed by the permitted existence of such Permitted Liens), (c) secures the Secured Obligations or the

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Canadian Secured Obligations, as applicable, (d) is enforceable against the Credit Party which created such security interest and (e) except as to Excluded Perfection Collateral, is perfected.

“Acceptance Fee” means a fee payable in Canadian Dollars by the Canadian Borrower to the Canadian Administrative Agent for the account of the Canadian Facility Lenders with respect to the acceptance of a B/A or the making of a B/A Equivalent Advance on the date of such acceptance or loan, calculated on the face amount of the B/A or the B/A Equivalent Advance at the rate per annum applicable on such date as set forth in the row labeled “Eurocurrency/BA Advance” in Schedule I on the basis of the number of days in the applicable Contract Period (including the date of acceptance and excluding the date of maturity) and a year of 365 days (it being agreed that the rate per annum applicable to any B/A Equivalent Advance is equivalent to the rate per annum otherwise applicable to the discount relating to the Bankers’ Acceptance which has been replaced by the making of such B/A Equivalent Advance pursuant to Section 2.18).

“Account Control Agreement” shall mean, as to any deposit account, securities account or commodities account of any Credit Party held with any bank, securities intermediary or commodities intermediary, as applicable, an agreement or agreements in form and substance reasonably acceptable to the applicable Administrative Agent, among the Credit Party owning such account, the applicable Administrative Agent and such other bank, securities intermediary or commodities intermediary, as applicable, governing such account.

“Account Debtor” shall mean an account debtor as defined in the Uniform Commercial Code, as in effect in the State of New York.

“Acquisition” means the purchase by any Restricted Entity of (a) any business, division or enterprise, including the purchase of associated assets or operations of such business, division, or enterprise of a Person, but for the avoidance of doubt, excludes purchases of equipment with no other tangible or intangible property associated with such equipment purchase unless such purchase of equipment involves all or substantially all the assets of the seller, (b) a majority of the Equity Interests of any Person, or (c) any Equity Interests in any Subsidiary which serves to increase the Parent’s or any Subsidiary’s respective equity ownership therein.

“Additional Lender” has the meaning set forth in Section 2.17(a).

“Adjusted Base Rate” means, for any day and for purposes of the US Advances, the fluctuating rate per annum of interest equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus 0.50%, (c) a rate determined by the US Administrative Agent to be the Daily One-Month LIBOR plus 1.00%, and (d) 0.00%.  Any change in the Adjusted Base Rate due to a change in the Prime Rate, Daily One-Month LIBOR or the Federal Funds Rate shall be effective on the effective date of such change in the Prime Rate, Daily One-Month LIBOR or the Federal Funds Rate.

“Administrative Agents” means, collectively, the US Administrative Agent and the Canadian Administrative Agent.

 “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the applicable Administrative Agent.

“Advance” means a US Advance or a Canadian Advance.

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“Affiliate” means, as to any Person, any other Person that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person or any Subsidiary of such Person.

“Agent’s Exchange Rate” for a currency means the rate determined by the US Administrative Agent to be the rate quoted by the US Administrative Agent as the spot rate for the purchase by the US Administrative Agent of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the US Administrative Agent may obtain such spot rate from another financial institution designated by the US Administrative Agent if the US Administrative Agent does not have as of the date of determination a spot buying rate for any such currency; and provided further that, as to Letters of Credit, the US Administrative Agent may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in a Foreign Currency, and any determination shall be presumed correct absent manifest error.

“Agreement” means this Credit Agreement among the Borrowers, the Lenders, the Issuing Lender, the Swing Line Lender and the Administrative Agents.

“Agreement Currency” has the meaning set forth in Section 9.20.

“Amendment No. 1 Effective Date” means August 6, 2020.

“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to any Borrower or any of its Affiliates from time to time concerning or relating to bribery or corruption.

“Applicable Margin” means, at any time with respect to each Type of Advance, the Letters of Credit and the Commitment Fees, the percentage rate per annum which is applicable at such time with respect to such Advance, Letter of Credit or Commitment Fee as set forth in Schedule I and subject to further adjustments as set forth in Section 2.8(e).

“Applicable Period” has the meaning set forth in Section 2.8(e).

“Applicable Pro Rata Share” means, for any Lender, (a) with respect to the Borrowing Base, any US Commitment, US Advance (including Swing Line Advance) or Letter of Credit Exposure, such Lender’s US Pro Rata Share and (b) with respect to any Canadian Commitment or Canadian Advance, such Lender’s Canadian Pro Rata Share.

“Asset Sale” means (a) any sale, transfer, or other Disposition of any Property, by any Restricted Entity to any Person other than a Credit Party and (b) any issuance or sale of any Equity Interests of any Subsidiary of a Restricted Entity to any Person other than a Credit Party.

“Assignment and Acceptance” means an assignment and acceptance executed by a Lender and an Eligible Assignee and accepted by the applicable Administrative Agent, in substantially the same form as Exhibit A.

“AutoBorrow Agreement” means any agreement providing for automatic borrowing services between the US Borrower and the Swing Line Lender.

“Availability” means, at any time, the excess, if any, of (a) the lesser of the Borrowing Base then in effect and the aggregate US Commitments over (b) the US Outstandings.

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“Available Cash Balance” means, at any time, an amount equal to (a) the aggregate amount of cash and cash equivalents held or owned by (whether directly or indirectly) or credited to the account of,  the Parent and its consolidated Restricted Subsidiaries minus (b) without duplication, the sum of (i) checks issued, wires initiated or ACH transfers initiated on such accounts, in any case, to non-affiliate third parties or to Affiliates on account of transactions not prohibited under this Agreement, plus (ii) cash and cash equivalents held in deposit accounts designated solely for payroll or employee benefits.\

“Available Cash Borrowing Limit” shall mean $10,000,000.

“Available Cash Sweep Date” shall mean the second Business Day of each calendar week.

“Available Cash Sweep Limit” shall mean $12,000,000.

“B/A Advance” means a B/A accepted and purchased by a Canadian Facility Lender pursuant to Section 2.18 or a B/A Equivalent Advance made by a Canadian Facility Lender pursuant to Section 2.18.  For greater certainty, all provisions of this Agreement that are applicable to Bankers’ Acceptances are also applicable, mutatis mutandis, to B/A Equivalent Advances.

“B/A Borrowing” means a Borrowing comprised of one or more Bankers’ Acceptances or, as applicable, B/A Equivalent Advances, as to which a single Contract Period is in effect. 

“B/A Equivalent Advance” shall have the meaning assigned to such term in Section 2.18(h).

“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

“Bail-In Legislation” means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

“Bankers’ Acceptance” and “B/A” means a non-interest bearing bill of exchange denominated in Canadian Dollars, drawn by the Canadian Borrower, and accepted by a Canadian Facility Lender in accordance with this Agreement, and shall include a depository bill within the meaning of the Depository Bills and Notes Act (Canada) and a bill of exchange within the meaning of the Bills of Exchange Act (Canada).

“Banking Services” means each and any of the following bank services provided to any Credit Party by any Banking Services Provider: (a) commercial credit cards, (b) stored value cards and (c) other cash and treasury management services (including, without limitation, controlled disbursement, purchase card arrangements, automated clearinghouse transactions, return items, overdrafts and interstate depository network services).

“Banking Services Obligations” means any and all obligations of any Credit Party, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor) in connection with Banking Services.

“Banking Services Provider” means any Lender (other than a Defaulting Lender) or Affiliate of a Lender (other than a Defaulting Lender) that provides Banking Services to any Credit Party.

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“Base Rate Advance” means an Advance which bears interest based upon the Adjusted Base Rate, the Canadian (Cdn) Base Rate or the Canadian (US) Base Rate.

“Benchmark” means, initially, with respect to any given currency, the applicable benchmark rate for Eurocurrency Advances denominated in such currency; provided, however, that if a Benchmark Transition Event or an Early Opt-in Election, as applicable, has occurred with respect to such benchmark rate, then “Benchmark” with respect to such currency shall mean the applicable Benchmark Replacement to the extent that such Benchmark Replacement has become effective pursuant to Section 2.4(c)(xiv).

“Benchmark Replacement”  means, with respect to any then-current Benchmark, the sum of: (a) the alternate benchmark rate that has been selected by the US Administrative Agent and the Borrowers as the replacement for such Benchmark giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body with respect to such currency or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to such Benchmark for syndicated credit facilities denominated in the currency applicable to such Benchmark and (b) the applicable Benchmark Replacement Adjustment for such Benchmark Replacement; provided, however, that, if any Benchmark Replacement as so determined would be less than 0.75%, such Benchmark Replacement will be deemed to be 0.75% for purposes of such determination under this Agreement.

“Benchmark Replacement Adjustment” means, with respect to any replacement of any then-current Benchmark with an Unadjusted Benchmark Replacement for each applicable Interest Period, 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 US Administrative Agent and the Borrowers 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 syndicated credit facilities at such time denominated in the currency applicable to such Benchmark.

“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Adjusted Base Rate,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that the US Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the US Administrative Agent in a manner substantially consistent with market practice (or, if the US Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the US Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the US Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).

“Benchmark Replacement Date” means the earlier 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 permanently or indefinitely ceases to provide such Benchmark; or (b) in the case of clause (c) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

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“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to any then-current Benchmark with respect to any given currency: (a) a public statement or publication of information by or on behalf of the administrator of such Benchmark announcing that such administrator has ceased or will cease to provide such Benchmark, permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark; (b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark or any other Relevant Governmental Body, which states that the administrator of such Benchmark has ceased or will cease to provide such Benchmark permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark; or (c) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark announcing that such Benchmark is no longer representative.

“Benchmark Transition Start Date” means (a) in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) 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) and (b) in the case of an Early Opt-in Election, the date specified by the US Administrative Agent or the US Majority Lenders, as applicable, by notice to the US Borrower, the US Administrative Agent (in the case of such notice by the US Majority Lenders) and the Lenders.

“Benchmark Unavailability Period” means, with respect to any then-current Benchmark, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to such Benchmark and solely to the extent that such Benchmark has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced such Benchmark for all purposes hereunder in accordance with Section 2.4(c)(xiv) and (y) ending at the time that a Benchmark Replacement has replaced such Benchmark for all purposes hereunder in accordance with Section 2.4(c)(xiv).

“Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

“Beneficial Ownership Regulation” means  31 C.F.R. § 1010.230.

“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in 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 Representative” means the Parent and each Borrower, which is authorized to act on behalf of the Borrowers under Section 9.6 of this Agreement.

“Borrowers” has the meaning set forth in the preamble of this Agreement.

“Borrowing” means a B/A Borrowing, US Revolving Borrowing, a Canadian Revolving Borrowing or a Swing Line Borrowing.

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“Borrowing Base” means, without duplication, 85% of the Eligible Receivables determined as of the date of the Borrowing Base Certificate then most recently delivered pursuant to this Agreement; provided that, notwithstanding the foregoing, the Administrative Agent may from time to time reduce the percentage set forth in this definition (such modified percentage to be effective no earlier than seven days after providing written notice thereof to the US Borrower) if the US Administrative Agent determines, in its Permitted Discretion, that such advance rate should be reduced based upon a collateral audit or field exam pursuant to Section 5.15.  Any change in the Borrowing Base shall be effective as of the date of the Borrowing Base Certificate then most recently delivered pursuant to this Agreement; provided that, should the US Borrower fail to deliver to the Administrative Agent and the Lenders the Borrowing Base Certificate as required under Section 5.2(d)(ii), the US Administrative Agent may nonetheless redetermine the Borrowing Base from time-to-time thereafter in its sole discretion (as promptly notified to the US Borrower and the US Facility Lenders by the US Administrative Agent) until the US Administrative Agent and the US Facility Lenders receive the required Borrowing Base Certificate, whereupon the US Administrative Agent shall redetermine the Borrowing Base (as promptly notified to the US Borrower and the US Facility Lenders by the US Administrative Agent) based on such Borrowing Base Certificate and the other terms hereof.

“Borrowing Base Certificate” means a certificate executed by a Responsible Officer of the US Borrower in the form of the attached Exhibit K and including the following: (a) accounts receivable and accounts payable aging reports for each Credit Party with grand totals, and (b) all other information as reasonably requested by the Administrative Agent.

“Borrowing Base Deficiency” means the excess, if any, of (a) the US Outstandings over (b) the lesser of (i) aggregate amount of US Commitments, and (ii) the Borrowing Base then in effect.

“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Legal Requirements of, or are in fact closed in, the city or state where the US Administrative Agent’s office with respect to Advances denominated in Dollars is located and:

(a) if such day relates to any interest rate settings as to a Eurocurrency Advance denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Advance, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Advance, means any such day (i) on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market, and (ii) on which banks are not required or authorized by law to close in Toronto, Canada;

(b) if such day relates to any interest rate settings as to a Eurocurrency Advance denominated in Canadian Dollars, means any such day on which dealings in deposits in Canadian Dollars are conducted by and between banks in Toronto, Ontario, Calgary, Alberta or other applicable offshore interbank market for Canadian Dollars;

(c)if such day relates to any interest rate settings as to a Eurocurrency Advance denominated in Euros, means any such day (i) on which dealings in deposits in Euros are conducted by and between banks in London, England, or other applicable offshore interbank market for Euros, and (ii) on which banks are not required or authorized by law to close in Toronto, Canada; and

(d) if such day also relates to any other fundings, disbursements, settlements and payments under the Canadian Facility, means any such day on which banks are not required or authorized by law to close in Calgary, Canada or Toronto, Canada.

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“Canadian Administrative Agent” means Wells Fargo Bank, National Association, Canadian Branch, and its successor or assign (including the US Administrative Agent in the event the Liens purported to be granted under the Canadian Security Documents are assigned to the US Administrative Agent).

“Canadian Advance” means an advance denominated in a Designated Currency as a part of a Canadian Borrowing and refers to either a Canadian (US) Base Rate Advance, a Canadian (Cdn) Base Rate Advance, a Eurocurrency Advance, or a B/A accepted and purchased by a Canadian Facility Lender pursuant to Section 2.18 and B/A Equivalent Advances made by a Lender pursuant to Section 2.18.

“Canadian Anti-Terrorism and Economic Sanctions Laws” means the anti-terrorist provisions of the Criminal Code (Canada), the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the United Nations Suppression of Terrorism Regulations, the Anti-terrorism Act (Canada), the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Export and Import Permits Act (Canada), the Corruption of Foreign Public Officials Act (Canada),  and all regulations and orders made thereunder, and all other laws, regulations, executive orders, and other official government pronouncement or actions relating to economic sanctions  (that establishes economic sanctions) or terrorism or money laundering administered or enforced in Canada or any Province thereof.

“Canadian Benefit Plans” means all employee benefit plans of any nature or kind whatsoever that are not Canadian Pension Plans and are maintained or contributed to by the Canadian Borrower or any other Restricted Subsidiary of the Parent organized under the laws of Canada or any province in Canada, in each case covering employees in Canada.

“Canadian Borrowing” means a B/A Borrowing or a Canadian Revolving Borrowing.

“Canadian (Cdn) Base Rate” means, on any day, the rate per annum equal to the greater of (a) the annual rate of interest announced from time to time by Royal Bank of Canada as its prime rate in effect at its principal office in Toronto on such day for determining interest rates on Canadian Dollar denominated commercial loans made in Canada; and (b) the annual rate of interest equal to the sum of (i) the CDOR Rate in effect on such day and (ii) 1.00%.

“Canadian (Cdn) Base Rate Advance” means a Canadian Advance in Canadian Dollars that bears interest as provided in the definition of Canadian (Cdn) Base Rate.

"Canadian Collateral" means all "Collateral" or "Mortgaged Property" or similar terms used in the Canadian Security Documents and Mortgages pertaining to Canadian real property, as applicable. The Canadian Collateral shall not include any Excluded Properties (Canada).

“Canadian Commitment” means, for each Canadian Facility Lender, the obligation of such Canadian Facility Lender to advance to the Canadian Borrower the amount set forth opposite such Canadian Facility Lender’s name on Schedule II as its Canadian Commitment, or if such Canadian Facility Lender has entered into any Assignment and Acceptance, set forth for such Canadian Facility Lender as its Canadian Commitment in the Register, as such amount may be reduced pursuant to Section 2.1(c)(i) or (d) or increased pursuant to Section 2.17; provided that, after the Maturity Date, the Canadian Commitment for each Canadian Facility Lender shall be zero.  The aggregate amount of all Canadian Commitments on the Amendment No. 1 Effective Date is $0. 

“Canadian Credit Party” means the Canadian Borrower and the Canadian Guarantors. 

“Canadian Dollars” and “C$” means the lawful money of Canada.

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“Canadian Facility” means the revolving credit facility described in Section 2.1(b).

“Canadian Facility Lenders” means Lenders having a Canadian Commitment or if such Canadian Commitments have been terminated, Lenders that are owed Canadian Advances.

“Canadian Guarantors” means any Canadian Subsidiary that now or hereafter execute the Guaranty or a joinder or supplement thereto.

“Canadian Majority Lenders” means (a) at any time when there are more than two Canadian Facility Lenders, two or more Canadian Facility Lenders holding greater than 50% of the sum of the unutilized Canadian Commitments plus the Canadian Outstandings, and (b) at any time when there are one or two Canadian Facility Lenders, all Canadian Facility Lenders; provided that, in any event, (i) the Canadian Commitment of, and the portion of the Advances held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Canadian Majority Lenders unless all Canadian Facility Lenders are Defaulting Lenders, and (ii) the aggregate Maximum Exposure Amount of any Lender and its Affiliates shall be treated as the Maximum Exposure Amount of one Lender for purposes of this definition.

“Canadian Note” means a promissory note made by the Canadian Borrower payable to a Canadian Facility Lender in the amount of such Canadian Facility Lender’s Canadian Commitment, in substantially the same form as Exhibit D-2.

“Canadian Outstandings” means, as of any date of determination, the Dollar Equivalent of the aggregate outstanding amount of all Canadian Advances.

“Canadian Pension Plans” means each plan that is considered to be a pension plan for the purposes of any applicable pension benefits standards statute and/or regulation in Canada established, maintained or contributed to by the Canadian Borrower or any other Restricted Subsidiary of the Parent organized under the laws of Canada or any province of Canada for its employees or former employees.

 “Canadian Pro Rata Share” means, at any time with respect to any Canadian Facility Lender, (i) ratio (expressed as a percentage) of such Lender’s aggregate outstanding Canadian Advances plus any unfunded Canadian Commitments at such time to the total aggregate outstanding Canadian Advances and unfunded Canadian Commitments at such time, or (ii) if no Canadian Advances and no Canadian Commitments are then outstanding, then “Canadian Pro Rata Share” shall mean the “Canadian Pro Rata Share” most recently in effect, after giving pro forma effect to any Assignment and Acceptances.

“Canadian Reference Bank” means Royal Bank of Canada, or its successors and assigns, or such other Schedule I Bank as agreed to from time to time by the Canadian Borrower and the Canadian Administrative Agent. 

 “Canadian Revolving Borrowing” means a borrowing consisting of simultaneous Canadian Advances of the same Type made by the Canadian Facility Lenders pursuant to Section 2.1.

“Canadian Secured Obligations” means the Secured Obligations owing by the Canadian Borrower or any Canadian Guarantor.

“Canadian Secured Parties” means the Canadian Administrative Agent, the Canadian Facility Lenders, and the Banking Services Providers and Swap Counterparties who are owed any Canadian Secured Obligations.

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“Canadian Security Agreement” means the security agreement among the Canadian Credit Parties and the Canadian Administrative Agent in substantially the same form as Exhibit H-2.

“Canadian Security Documents” means the Canadian Security Agreement, and each other Security Document to which any Canadian Credit Party is a party and that purports to grant a Lien in the assets of any such Person in favor of the Canadian Administrative Agent for the benefit of the Canadian Secured Parties.

“Canadian Subsidiary” means any Subsidiary of the Parent organized under the federal laws of Canada or any province or territory thereof.

“Canadian (US) Base Rate” means the greatest of (a) the rate that Royal Bank of Canada will charge to customers of varying degrees of creditworthiness in Canada for US Dollar demand loans in Canada; (b) the rate of interest per annum for such day or, if such day is not a Business Day, on the immediately preceding Business Day, equal to the sum of the Federal Funds Rate (expressed for such purpose as a yearly rate per annum in accordance with Section 5.4), plus 1.00% per annum; and (c) Daily One-Month LIBOR plus 1.00% per annum. 

“Canadian (US) Base Rate Advance” means a Canadian Advance in Dollars that bears interest as provided in the definition of Canadian (US) Base Rate.

“Capital Expenditure Amount” means (a) for the fiscal year ending December 31, 2020, $10,000,000 and (b) for each fiscal year thereafter the sum of (i) $10,000,000 plus (ii) 100% of the unutilized portion of the Capital Expenditure Amount from the immediately preceding fiscal year; provided that (x) any utilization of the Capital Expenditure Amount shall be applied first to reduce the carry-over component in clause (b)(ii) above before being applied to reduce the components in clause (b)(i) above, and (y) the unutilized portion of the Capital Expenditure Amount may be carried forward only to the immediately following fiscal year.

“Capital Expenditures” for any Person and period of its determination means, without duplication, the aggregate of all expenditures and costs (whether paid in cash or accrued as liabilities during that period and including that portion of payments under Capital Leases that are capitalized on the balance sheet of such Person) of such Person during such period that, in conformity with GAAP, are required to be included in or reflected by the property, plant, or equipment or similar fixed asset accounts reflected in the balance sheet of such Person.

“Capital Leases” means, for any Person, any lease of any Property by such Person as lessee which would, in accordance with GAAP, be required to be classified and accounted for as a finance lease on the balance sheet of such Person.

“Cash Collateral Account” means a special cash collateral account pledged to the US Administrative Agent containing cash deposited pursuant to the terms hereof to be maintained with the US Administrative Agent in accordance with Section 2.2(h).

“Cash Collateralize” means, to pledge and deposit with or deliver to the US Administrative Agent, for the benefit of the Issuing Lender, the Swing Line Lender or one or more of the Secured Parties, as collateral for Letter of Credit Obligations, Obligations with respect to Swing Line Advances or obligations of Lenders to fund participations in respect of Letter of Credit Obligations or Swing Line Advances, cash or deposit account balances or, if the US Administrative Agent, Swing Line Lender and the Issuing Lender shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and

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substance reasonably satisfactory to the US Administrative Agent.  “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

 “Cash Dominion Event” means the occurrence of any of the following:  (a) the occurrence and continuance of any Event of Default, or (b) Availability is less than 12% of the Borrowing Base at any time.

“Cash Dominion Period” means the period commencing after the occurrence of a Cash Dominion Event and continuing until the date when (a) no Event of Default shall exist and be continuing, and (b) Availability exceeds 12% of the Borrowing Base for at least 30 consecutive days.

“Casualty Event” means the damage, destruction or condemnation, including by process of eminent domain or any transfer or disposition of property in lieu of condemnation, as the case may be, of property of any Person.

“CDOR Rate” means, for each day in any period, the annual rate of interest that is the rate based on an average rate applicable to Canadian Dollar bankers’ acceptances for a term equal to the term of the relevant Interest Period (or the relevant Contract Period for purposes of B/A Advances, or for a term of 30 days for purposes of determining the Canadian (Cdn) Base Rate) appearing on the Reuters Monitor Screen Page CDOR at approximately 10:00 a.m. (Toronto, Ontario time), on such date, or if such date is not a Business Day, on the immediately preceding Business Day; provided that if such rate does not appear on the Reuters Monitor Screen Page CDOR as contemplated, then the CDOR Rate on such date shall be (a) for B/A Advances, the arithmetic average of the Discount Rate quoted by each Schedule I Bank (determined by the Canadian Administrative Agent as of 10:00 a.m. (Toronto, Ontario time) on such date) and (b) for all other purposes, the rate quoted by the Canadian Reference Bank as its annual discount rate (determined by the applicable Administrative Agent as of 10:00 a.m. (Toronto, Ontario time) on such date), in each case that would be applicable to Canadian Dollar bankers’ acceptances for the relevant period quoted by such bank as of 10:00 a.m. (Toronto, Ontario time) on such date or, if such date is not a Business Day, on the immediately preceding Business Day.  No adjustment shall be made to account for the difference between the number of days in a year on which the rates referred to in this definition are based and the number of days in a year on the basis of which interest is calculated in this Agreement.  Notwithstanding the foregoing, if the CDOR Rate at any determination shall be less than 0.75%, such rate shall be deemed to be 0.75% for purposes of such determination under this Agreement.

“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, applicable state and local analogs, and all rules and regulations and requirements promulgated thereunder in each case as now or hereafter in effect.

“Change in Control” means the occurrence of any of the following events:

(a)any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) other than Permitted Holders becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire (such right, an “option right”), whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 35% or more of the equity securities of the Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right),

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(b)after the Closing Date, during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period or who were, subsequent to such first day, approved (including by approval of a reduction in the membership of the board or other governing body) by a majority of such members of the board or equivalent governing body, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body,

(c) the Parent shall fail to, directly or indirectly, own 100% of the Equity Interests (including the Voting Securities) of US Borrower, or

(d)the Parent shall fail to, directly or indirectly, own 100% of the Equity Interests (including the Voting Securities) of Canadian Borrower.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives made or issued by any Governmental Authority thereunder or in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Class” has the meaning set forth in Section 1.4.

“Closing Date” means May 1, 2019.

“Code” means the Internal Revenue Code of 1986, and the regulations and published interpretations thereof.

“Collateral” means, collectively, all of the US Collateral and the Canadian Collateral.

“Collections” means, all cash, checks, notes, instruments, and other items of payment (including insurance proceeds, cash proceeds of asset sales, rental proceeds and Tax refunds).

“Commitment Fees” means the fees payable in Dollars required under Section 2.7(a) and Section 2.7(b).

“Commitment Increase” has the meaning set forth in Section 2.17(a).

“Commitments” means, as to any Lender, its US Commitment and its Canadian Commitments, if applicable.

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“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

“Communications” has the meaning set forth in Section 9.9(b)(i).

“Compliance Certificate” means a compliance certificate executed by a Responsible Officer of the US Borrower or such other Person as required by this Agreement in substantially the same form as Exhibit B.

“Computation Date” means (a) the last Business Day of each calendar quarter, (b) the date of any proposed Advance or Letter of Credit, (c) the date of any reduction of Commitments, (d) the date of any increase in the Commitments, (e) the date of any reallocation provided in Section 2.15, and (f) after an Event of Default has occurred and is continuing, any other Business Day at the US Administrative Agent’s discretion or upon instruction by the Majority Lenders.

“Contract Period” means the term of a B/A Advance selected by the Canadian Borrower in accordance with Section 2.18, commencing on the date of such B/A Advance and expiring on a Business Day which shall be one month, two months, three months or six months thereafter, provided that (a) subject to clause (b) below, each such period shall be subject to such extensions or reductions as may be reasonably determined by the Canadian Administrative Agent to ensure that each Contract Period shall expire on a Business Day, and (b) no Contract Period shall extend beyond the Maturity Date.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership, by contract, or otherwise, and the terms “Controlled by” or “under common Control with” shall have the correlative meanings.

“Controlled Account” mean a deposit account in the name of a Credit Party and that is subject to an Account Control Agreement but that is not an Excluded Account.

“Controlled Group” means all members of a controlled group of corporations and all businesses (whether or not incorporated) under common control which, together with the Parent or any Subsidiary, are treated as a single employer under Section 414 of the Code.

“Convert,” “Conversion,” and “Converted” each refers to (a) a conversion of Advances of one Type into Advances of another Type pursuant to Section 2.4(b), (b) a conversion of B/A Advances into Canadian (Cdn) Base Rate Advances pursuant to Section 2.4(b) and (c), or (c) a conversion of Canadian (Cdn) Base Rate Advances into B/A Advances pursuant to Section 2.4(b) and (c).

“Covenant Cure Payment” shall have the meaning set forth in Section 7.7 hereof.

“Covenant Testing Period” means a period (a) commencing on the last day of the fiscal quarter of Parent most recently ended prior to a Covenant Trigger Event for which Borrowers are required to deliver quarterly or annual financial statements pursuant to Section 5.2 of this Agreement, and (b) continuing through and including (but ending on) the first day, after such Covenant Trigger Event, on which Availability has exceeded 20% of the then effective Borrowing Base for 30 consecutive days.

“Covenant Trigger Event” means Availability is less than 20% of the Borrowing Base at any time.

“Credit Documents” means this Agreement, the Notes, the Letters of Credit, the Letter of Credit Applications, the Guaranty, the Notices of Borrowing, the Notices of Conversion, the Security Documents,

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any AutoBorrow Agreement, the Fee Letter and each other agreement, instrument, or document executed by any Credit Party at any time in connection with this Agreement.

“Credit Parties” means the Borrowers and the Guarantors.

“Cure Right” shall have the meaning set forth in Section 7.7 hereof.

“Daily One-Month LIBOR” means, for any day, the rate of interest equal to the Eurocurrency Rate then in effect for delivery for a one month period.

“DBRS” means DBRS Ltd. or Dominion Bond Service Ltd.

“Debt” means, for any Person, without duplication: (a) indebtedness of such Person for borrowed money; (b) obligations under letters of credit and agreements relating to the issuance of letters of credit, bankers’ acceptances, bank guaranties, surety bonds and similar instruments; (c) obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (d) obligations of such Person under conditional sale or other title retention agreements relating to any Properties purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business); (e) obligations of such Person to pay the deferred purchase price of property (such obligations including, without limitation, any earn-out obligations, contingent obligations, or other similar obligations associated with such purchase) but excluding (i) any earn out obligation or purchase price adjustment until such obligation or adjustment becomes a liability on the statement of financial position or balance sheet (excluding the footnotes thereto) in accordance with GAAP and (ii) trade accounts payable in the ordinary course of business and, in each case, not past due for more than 90 days after the date on which such trade account payable was originally invoiced; (f) obligations of such Person as lessee under Capital Leases and obligations of such Person in respect of synthetic leases; (g) obligations of such Person under any Hedging Arrangement; (h) all obligations of such Person to mandatorily purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person on a date certain or upon the occurrence of certain events or conditions, valued, in the case of a mandatorily redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends (which obligations, for the avoidance of doubt, do not include any obligations to issue common Equity Interests); (i) the Debt of any partnership or unincorporated joint venture in which such Person is a general partner or a joint venturer, but only to the extent to which there is recourse to such Person for the payment of such Debt; (j) obligations of such Person under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) of such Person to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (a) through (i) above; and (k) indebtedness or obligations of others of the kinds referred to in clauses (a) through (j) secured by any Lien on or in respect of any Property of such Person, but if recourse is only to such Property, then only to the extent of the lesser of the amount of the Debt secured thereby and the fair market value of the Property subject to such Lien.

“Debtor Relief Laws” means (a) the Bankruptcy Code of the United States, (b) the Bankruptcy and Insolvency Act (Canada), (c) the Companies’ Creditors Arrangement Act (Canada), (d) the Winding-up and Restructuring Act (Canada), and (e) 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, Canada or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“Default” means (a) an Event of Default or (b) any event or condition which with notice or lapse of time or both would, unless cured or waived, become an Event of Default.

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“Default Rate” means a per annum rate equal to 2.00% plus the rate otherwise applicable to the applicable Advances as provided in Section 2.8(a), (b), or (c).

“Defaulting Lender” means, subject to Section 2.15(b), any Lender that (a) has failed to (i) fund all or any portion of its Advances within two Business Days of the date such Advances were required to be funded hereunder unless such Lender notifies the US Administrative Agent and the US Borrower in writing that such failure is the result of such Lender’s good faith 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 US Administrative Agent, the Issuing Lender, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Advances) within two Business Days of the date when due, (b) has notified the US Borrower, the US Administrative Agent, Issuing Lender or the Swing Line Lender 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 Lender’s obligation to fund an Advance hereunder and states that such position is based on such Lender’s good faith 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) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after written request by the US Administrative Agent or the US Borrower, to confirm in writing to the US Administrative Agent and the US Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the US Administrative Agent and the US Borrower in form and substance reasonably satisfactory to the US Administrative Agent and the US Borrower), or (d) is, or has a direct or indirect parent company that is, (i) 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 Federal Deposit Insurance Corporation 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 Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the US Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.15(b)) upon delivery of written notice of such determination to the US Borrower, the Issuing Lender, the Swing Line Lender and each Lender under the applicable Facility.

“Designated Currency” means, subject to Section 1.6, (a) for Swing Line Advances and Base Rate Advances under the US Facility, Dollars, (b) for Eurocurrency Advances under the US Facility, Dollars, Canadian Dollars or Euros, (c) for Letters of Credit, Dollars and Canadian Dollars, (d) for B/As and B/A Equivalent Advances, Canadian Dollars, (e) for Eurocurrency Advances under the Canadian Facility, Dollars, (f) for Canadian (US) Base Rate Advance, Dollars, and (g) for Canadian (Cdn) Base Rate Advance, Canadian Dollars.

“Discount Proceeds” means for any B/A (or, as applicable, any B/A Equivalent Advance), an amount (rounded to the nearest whole cent, and with one-half of one cent being rounded up) calculated on the applicable Borrowing date by multiplying:

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(b)the quotient of one divided by the sum of one plus the product of:

(i)the Discount Rate (expressed as a decimal) applicable to such B/A (or, as applicable, any B/A Equivalent Advance), and

(ii)a fraction, the numerator of which is the number of days in the Contract Period of the B/A (or, as applicable, any B/A Equivalent Advance) and the denominator of which is 365,

with such quotient being rounded up or down to the fifth decimal place and .000005 being rounded up.

“Discount Rate” means (a) with respect to any Lender that is a Schedule I Bank, as applicable to a B/A being purchased by such Lender on any day, the CDOR Rate; and (b) with respect to any Lender that is not a Schedule I Bank, as applicable to a B/A being purchased by such Lender on any day, the lesser of (A) the CDOR Rate plus 10 basis points (0.10%), and (B) the average (as determined by the Canadian Administrative Agent in good faith) of the respective percentage discount rates (expressed to two decimal places and rounded upward, if not in an increment of 1/100th of 1%, to the nearest 0.01%) quoted by the Schedule II/III Reference Banks as the percentage discount rates at which the Schedule II/III Reference Banks would, in accordance with their normal market practices, at or about 10:00 a.m. (Toronto, Ontario time) on such date, be prepared to purchase bankers’ acceptances accepted by the Schedule II/III Reference Banks having a face amount and term comparable to the face amount and term of such B/A.

“Disposition” means any sale, lease, transfer, assignment, conveyance, or other disposition of any Property, excluding the granting of a Lien; “Dispose” or similar terms shall have correlative meanings.

“Disqualified Institution” shall mean (a) the Persons identified in writing to the Administrative Agents by the Borrowers at least two Business Days prior to the Closing Date, and (b) any other Person that has been designated by the US Borrower as “Disqualified Institution” by written notice to the Administrative Agent after the Closing Date; provided that, (i) such notice must specify such Person by name in form sufficient to correctly identify the named entity, (ii) such designation is subject to the Administrative Agent’s consent (not to be unreasonably withheld), (iii) the Lenders shall have been notified of such designation, and (iv) a Person that is already a Lender or an Affiliate of a Lender at the time of designation may not be designated as a “Disqualified Institution”; provided further that, “Disqualified Institutions” shall exclude any Person that the Borrowers have designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agents from time to time.

“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, and (b) with respect to any amount denominated in any Foreign Currency, and subject to Section 1.6(b), the equivalent amount thereof in Dollars at such time on the basis of the Agent’s Exchange Rate (determined in respect of the most recent Computation Date) for the purchase of Dollars with such Foreign Currency. 

“Dollars” and “$” means lawful money of the United States of America.

“Domestic Subsidiary” means any Subsidiary that is not a Foreign Subsidiary.

“Early Opt-in Election”  means, with respect to any then-current Benchmark, the occurrence of:

“EBITDA” means for the Parent and its Restricted Subsidiaries, on a consolidated basis for any period (the “subject period”), consolidated Net Income for such subject period, adjusted by:

(a) adding thereto, without duplication, and in each case only to the extent deducted in determining such consolidated Net Income (except with respect to clause (xi)  and (xvi) below):

(i) Interest Expense,

(ii) Income Tax Expense,

(iii) non-cash impairment charge or asset write-off and the amortization of intangibles,

(iv)other non-cash charges, non-cash expenses and non-cash losses,

(v)losses on Dispositions of capital assets outside the ordinary course of business,

(vi)costs of legal settlements, fines, judgments or orders to the extent reimbursed by insurance or any other Person that is not the Parent or any Subsidiary,

(vii) amortization and depreciation,

(viii) the following items, provided that the aggregate amount of all items added back under this clause (viii) shall not exceed $7,000,000 for such subject period:

(A)unusual or non-recurring items (including, for the avoidance of doubt, charges, accruals, reserves or expenses attributable to (1) the undertaking or implementation of cost savings initiatives, operating expense reductions and other restructuring and integration charges, and (2) litigation, arbitration or mediation (including costs of counsel, consultants, dispute resolution professionals and experts) relating to infringement, misappropriation, theft or other misuse of intellectual property and related rights, including without limitation patents, trademarks, trade names, copyrights, and applications for any of the foregoing, and trade secrets and other confidential information),

(B)[Reserved]

(C)the amount of third party, out-of-pocket expenses reimbursed to the Permitted Holders (or their respective Affiliates or management companies) for expenses incurred by the Permitted Holders (or their respective Affiliates or management companies) on behalf of, or pertaining to, the Parent or its Subsidiaries, and

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(D)cash charges and expenses incurred in connection with the issuance or offering of Equity Interests, Dispositions outside the ordinary course of business, recapitalizations, mergers, consolidations or amalgamations, or option buyouts, provided that (i) such transaction is permitted under this Agreement and (ii) such charges and expenses are non-recurring with respect to such transaction,

(ix)non-recurring cash charges and expenses (including severance payments) incurred in connection with any Permitted Acquisitions, and restructuring costs associated with single or one-time events incurred in connection with any Permitted Acquisitions; provided that, the aggregate amount added back under this clause (ix) in any such subject period shall not exceed 7.5% of EBITDA (after giving effect to all additions and subtractions provided for in this definition of EBITDA, including this clause (ix)),

(x) (A) cash charges and expenses paid and incurred in connection with the Transactions, (B) cash charges, fees and expenses incurred in connection with any amendment or modification of the Credit Documents or the Obligations, and (C) cash charges to the extent actually reimbursed by third parties pursuant to indemnification provisions in applicable binding contracts which are not being contested,

(xi)business interruption insurance proceeds actually received by any Credit Party in an amount representing the earnings for the applicable period that such proceeds are intended to replace,

(xii)unrealized net losses in the fair market value of any Hedging Arrangement,

(xiii)the amount of any expense or deduction associated with any Restricted Subsidiary of the US Borrower and attributable to any non-controlling Equity Interest and/or minority interest of any third party,

(xiv)cash actually received during the subject period and not included in Net Income for such subject period but only to the extent that the non-cash gain relating to such cash receipt was deducted in the calculation of EBITDA pursuant to clause (b)(ii) below for any previous subject period and not added back,

(xv)JV Net Income of any Joint Venture of any Credit Party for any subject period but only to the extent such JV Net Income is distributed by such Joint Venture to a Credit Party in the form of cash dividends or distributions; provided that, the add-back in this clause (xv) shall not include any amounts of such dividends and distributions that are subsequently distributed, contributed or otherwise transferred to such Joint Venture during such subject period,

(xvi) research and development tax credits awarded under Canadian federal law for research and development spending by the Parent or any Subsidiary thereof (without regard to whether or not such tax credits were deducted in determinig consolidated Net Income), provided that the add back in this clause (xvi) shall not exceed $1,500,000 for such subject period, and

(xvii)extraordinary items, and

 (b) subtracting therefrom, without duplication, in each case only to the extent included (as opposed to deducted) in determining such consolidated Net Income (except with respect to clause (iv) below):

(i)extraordinary items,

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(ii)non-cash gains, including unrealized net gains in the fair market value of any Hedging Arrangement and non-cash gains resulting from non-recurring events or circumstances for such subject period,

(iii)all other non-cash items of income which were included in determining such Net Income (other than the accrual of revenue or recording of receivables in the ordinary course of business), and

(iv)all non-cash charges, non-cash expenses and non-cash losses, which were added back under the preceding clause (a) in determining EBITDA for a prior subject period, to the extent such prior non-cash charge, non-cash expense or non-cash loss was either (A) satisfied in cash (in whole or in part) in the subject period or (B) recognized, due to an action of the Parent, as an asset write off or write down for balance sheet purposes in the subject period;

provided that such EBITDA shall be subject to pro forma adjustments pursuant to Section 1.7 for Permitted Acquisitions and Non-ordinary Course Asset Sales assuming that such transactions had occurred on the first day of the determination period, which adjustments shall, in each case, be made in accordance with the guidelines for pro forma presentations set forth by the SEC or in a manner otherwise reasonably acceptable to the US Administrative Agent and subject to supporting documentation reasonably acceptable to the US Administrative Agent, in each case, certified by a Responsible Officer of the Parent. 

“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent;

“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 9.7(b)(iii), (v) and (vi) (subject to such consents, if any, as may be required under Section 9.7(b)(iii)); provided that, in no event, shall a Disqualified Institution constitute an Eligible Assignee without the prior written consent of the US Borrower (which consent may be given or withheld in the US Borrower’s sole and absolute discretion).

“Eligible Receivables” means, as to the Credit Parties, on a consolidated basis and without duplication, all Receivables of such Person, in each case reflected on its books in accordance with GAAP which conform to the representations and warranties in ARTICLE 4 hereof and in the Security Documents to the extent such provisions are applicable to the Receivables, and that are not excluded as ineligible by virtue of one or more of the excluding criteria set forth below:

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In determining the amount of an Eligible Receivable, (A) the face amount of such Receivable shall be reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual discounts, claims, credits or credits pending, promotional program allowances, price adjustments, or other allowances, payables or obligations to the Account Debtor (including any amount that

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any Credit Party may be obligated to rebate to an Account Debtor pursuant to the terms of any agreement or understanding (written or oral)), (ii) all taxes, duties or other governmental charges included in such Receivable, and (iii) the aggregate amount of all cash received in respect of such Receivable but not yet applied by any Credit Party to reduce the amount of such Receivable and (B) if such Receivable is owed in Canadian Dollars, the Dollar Equivalent of such Receivable shall be used.

“EMU” means the economic and monetary union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998. 

“Environment” or “Environmental” shall have the meanings set forth in 42 U.S.C.  § 9601(8) (1988).

“Environmental Claim” means any third party (including any Governmental Authority) action, lawsuit, claim, demand, regulatory action or proceeding, order, decree, consent agreement or written notice of potential or actual responsibility or violation which seeks to impose liability under any Environmental Law.

“Environmental Law” means all applicable federal, state, provincial, and local laws, rules, regulations, ordinances, orders, decisions, enforceable agreements, and other Legal Requirements, including duties imposed under common law, now or hereafter in effect and relating to, or in connection with the Environment, including without limitation CERCLA, relating to (a) pollution, contamination, injury, destruction, loss, protection, cleanup, reclamation or restoration of the air, surface water, groundwater, land surface or subsurface strata, or other natural resources; (b) solid, gaseous or liquid waste generation, treatment, processing, recycling, reclamation, cleanup, storage, disposal or transportation; (c) exposure to pollutants, contaminants, hazardous, or toxic substances, materials or wastes; or (d) the manufacture, processing, handling, transportation, distribution in commerce, use, storage or disposal of hazardous, or toxic substances, materials or wastes.

“Environmental Permit” means any permit, license, approval, registration or other authorization under Environmental Law.

“Equity Interest” means with respect to any Person, any shares, interests, profits interests, participations, or other equivalents (however designated) of corporate stock, membership interests or partnership interests (or any other ownership interests) of such Person.

“Equity Issuance” means any issuance of equity securities or any other Equity Interests by any Restricted Entity other than Equity Interests issued (a) to a Credit Party, and (b) pursuant to employee or director and officer stock option plans in the ordinary course of business.

“Equity Issuance Proceeds” means, with respect to any Equity Issuance, all cash and cash equivalent investments received by any Restricted Entity from such Equity Issuance (other than from any other Credit Party) after payment of, or provision for, all underwriter fees and expenses, SEC and blue sky fees, printing costs, fees and expenses of accountants, lawyers and other professional advisors, brokerage commissions and other out-of-pocket fees and expenses actually incurred by any Restricted Entity in connection with such Equity Issuance.

“ERISA” means the Employee Retirement Income Security Act of 1974.

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“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

“Euro” and “EUR” mean the lawful currency of the participating member states of the EMU.

“Eurocurrency Advance” means an US Advance or a Canadian Advance that bears interest based upon the Eurocurrency Rate (other than Advances that bear interest based upon the Daily One Month LIBOR).

“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation D of the Federal Reserve Board as in effect from time to time.

“Eurocurrency Base Rate” means, subject to the implementation of a Benchmark Replacement in accordance with Section 2.4(c)(xiv):

(a)for US Advances denominated in any currency (other than Canadian Dollars) (i) in determining Eurocurrency Rate for purposes of the “Daily One Month LIBOR”, the rate per annum for deposits in the relevant currency quoted by the US Administrative Agent for the purpose of calculating effective rates of interest for loans making reference to the “Daily One-Month LIBOR” or the “LIBOR Market Index Rate”, as the inter-bank offered rate in effect from time to time for delivery of funds for one (1) month in amounts approximately equal to the principal amount of the applicable Advances; provided that, the US Administrative Agent may base its quotation of the inter-bank offered rate upon such offers or other market indicators of the inter-bank market as the US Administrative Agent in its reasonable discretion deems appropriate including, but not limited to, the rate determined under the following clause (ii), however, any such LIBOR Market Index Rate determined under this proviso shall be consistent with the LIBOR Market Index Rate for similar durations and amounts offered by the US Administrative Agent to its customers generally; and (ii) in determining Eurocurrency Rate for all other purposes, the rate per annum (rounded upward to the nearest whole multiple of 1/8th of 1%) equal to the interest rate per annum as set forth on the Reuters Reference LIBOR1 page (or on any successor or substitute page of such service, or any successor to or substitute for such service, as determined by the US Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to deposits in the relevant currency in the London interbank market) as the London Interbank Offered Rate, for deposits in the relevant currency, as applicable, at 11:00 a.m.  (London, England time) two Business Days before the first day of the applicable Interest Period and for a period equal to such Interest Period; provided that, if such quotation is not available for any reason, then for purposes of this clause (ii), Eurocurrency Base Rate shall then be the rate reasonably determined by the US Administrative Agent to be the rate at which deposits in the relevant currency for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the Advances being made, continued or converted by the US Facility Lenders and with a term equivalent to such Interest Period would be offered by the US Administrative Agent’s London Branch (or other branch or Affiliate of the US Administrative Agent, or in the event that the US Administrative Agent does not have a London branch, the London branch of a US Facility Lender chosen by the US Administrative Agent) to major banks in the London or other offshore inter-bank market for the relevant currency at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period);

(b)for US Advances denominated in Canadian Dollars, the CDOR Rate; and

(c)for Canadian Advances denominated in Dollars (i) in determining Eurocurrency Rate for purposes of the “Daily One Month LIBOR”, the rate per annum for deposits in Dollars quoted by the US Administrative Agent for the purpose of calculating effective rates of interest for loans making reference to

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the “Daily One-Month LIBOR” or the “LIBOR Market Index Rate”, as the inter-bank offered rate in effect from time to time for delivery of funds for one (1) month in amounts approximately equal to the principal amount of the applicable Advances; provided that, the US Administrative Agent may base its quotation of the inter-bank offered rate upon such offers or other market indicators of the inter-bank market as the US Administrative Agent in its reasonable discretion deems appropriate including, but not limited to, the rate determined under the following clause (ii), however, any such LIBOR Market Index Rate determined under this proviso shall be consistent with the LIBOR Market Index Rate for similar durations and amounts offered by the US Administrative Agent to its customers generally; and (ii) in determining Eurocurrency Rate for all other purposes, the rate per annum (rounded upward to the nearest whole multiple of 1/8th of 1%) equal to the interest rate per annum as set forth on the Reuters Reference LIBOR1 page (or on any successor or substitute page of such service, or any successor to or substitute for such service, as determined by the US Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to deposits in Dollars in the London interbank market) as the London Interbank Offered Rate, for deposits in Dollars, as applicable, at 11:00 a.m.  (London, England time) two Business Days before the first day of the applicable Interest Period and for a period equal to such Interest Period; provided that, if such quotation is not available for any reason, then for purposes of this clause (ii), Eurocurrency Base Rate shall then be the rate reasonably determined by the Canadian Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the Advances being made, continued or converted by the Canadian Facility Lenders and with a term equivalent to such Interest Period would be offered by the Canadian Administrative Agent’s London Branch (or other branch or Affiliate of the Canadian Administrative Agent, or in the event that the US Administrative Agent does not have a London branch, the London branch of a US Facility Lender chosen by the US Administrative Agent) to major banks in the London or other offshore inter-bank market for the Dollars at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period). 

Unless otherwise specified in any amendment to this Agreement entered into in accordance with Section 2.4(c)(xiv), in the event that a Benchmark Replacement with respect to the Eurocurrency Base Rate under a Facility is implemented then all references herein and in the other Credit Documents to Eurocurrency Base Rate under such Facility shall be deemed a reference such Benchmark Replacement.

“Eurocurrency Rate” means a rate per annum determined by the applicable Administrative Agent pursuant to the following formula:



Eurocurrency Rate =Eurocurrency Base Rate______

1.00 – Eurocurrency Reserve Percentage

Where,

“Eurocurrency Reserve Percentage” means, as of any day, for Advances denominated in any currency, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the Federal Reserve Board for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to liabilities or assets consisting of or including Eurocurrency Liabilities.  The Eurocurrency Rate for each outstanding Advance shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage.

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Notwithstanding the foregoing, if the Eurocurrency Rate (or any Benchmark Replacement with respect thereto) at any determination shall be less than 0.75%, such rate shall be deemed to be 0.75% for purposes of such determination under this Agreement.

“Event of Default” has the meaning specified in Section 7.1.

“Excluded Perfection Collateral” shall mean, unless otherwise elected by the Administrative Agents during the continuance of an Event of Default, collectively (a) assets requiring perfection through control agreements (other than (i) control of Pledged Interests or Pledged Shares (each as defined in the Security Agreement), and (ii) cash, Liquid Investments, deposit accounts, commodities accounts and securities accounts, including securities and entitlements therein to the extent otherwise constituting Collateral), (b) commercial tort claims, (c) letter of credit rights to the extent a security interest therein cannot be perfected by the filing of a financing statement under the UCC or PPSA, (d) any other intellectual property to the extent any filings would be required with any foreign Governmental Authority (other than Canada or any province thereof), (e) vehicles and other certificated or titled equipment and (f) any other Property (i) in which a security interest cannot be perfected by the filing of a financing statement under the UCC or PPSA, (ii) to the extent a grant of security interest therein is prohibited by applicable law or (iii) with respect to which the Administrative Agents have determined, in their reasonable discretion that the cost of perfecting a security interest in such Property outweighs the benefit of the Lien afforded thereby.

“Excluded Properties” means Excluded Properties (US) and Excluded Properties (Canada).

“Excluded Properties (US)” means (a) all fee owned real property of any US Credit Party with a fair market value of less than $750,000, individually or in the aggregate (when aggregated with fee owned real property of all US Credit Parties that constitute Excluded Properties), (b) all leased real property of any US Credit Party, and (c) the “Excluded Collateral”, as defined in the US Security Agreement, which includes (i) Excluded JV Equity Interests, as defined therein, (ii) Excluded Trademark Collateral, as defined therein, (iii) Excluded Contracts, as defined therein, and (iv) Excluded PMSI Collateral, as defined therein.

“Excluded Properties (Canada)” means (a) all fee owned real property of any Canadian Credit Party with a fair market value of less than $750,000, individually or in the aggregate (when aggregated with fee owned real property of all Canadian Credit Parties that constitute Excluded Properties), (b) all leased real property of any Canadian Credit Party, and (c) the “Excluded Collateral”, as defined in the Canadian Security Agreement, which includes (i) Excluded JV Equity Interests, as defined therein, (ii) Excluded Trademark Collateral, as defined therein, (iii) Excluded Contracts, as defined therein, and (iv) Excluded PMSI Collateral, as defined therein.

“Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by

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net income or gross income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) US federal withholding Taxes and Canadian withholding Taxes imposed on amounts payable to or for the account of such Recipient with respect to an applicable interest in a Letter of Credit, Advance or Commitment (including by reason of such Recipient’s participation interest in Letters of Credit) pursuant to a law in effect on the date on which (i) such Recipient acquires such interest in a Letter of Credit, Advance or Commitment (other than pursuant to an assignment request by the US Borrower under Section 2.14) or (ii) such Recipient changes its Lending Office, except in each case to the extent that, pursuant to Section 2.13, amounts with respect to such Taxes were payable either to such Recipient’s assignor immediately before such Recipient became a party hereto or to such Recipient immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.13(g), (d) any US federal withholding Taxes imposed under FATCA, (e) Taxes imposed on, or in respect of an obligation to pay an amount to, a Recipient with which a Credit Party that is a Foreign Subsidiary does not deal at arm’s length (within the meaning of the Tax Act), and (f) Taxes imposed on a Recipient that is a “specified shareholder” (within the meaning of Subsection 18(5) of the Tax Act) of a Credit Party that is a Foreign Subsidiary, or that does not deal at arm’s length with a “specified shareholder” of a Credit Party that is a Foreign Subsidiary, pursuant to Subsections 214(16) and 212(2) of the Tax Act.  For purposes of clauses (e) and (f) of this definition, any Subsidiary described in clauses (b), (c) or (d) of the definition of “Foreign Subsidiary” shall be disregarded in determining whether such Subsidiary is a Foreign Subsidiary.

“Existing Credit Agreement” has the meaning set forth in the Recitals hereof.

“Existing Letters of Credit” means the letters of credit issued under the Existing Credit Agreement as set forth on Schedule 1.1(b).

 “Extraordinary Receipts” means any proceeds of insurance or any award or other compensation as a result of a Casualty Event, in each case after payment of any Taxes attributable to the receipt thereof (including any such Taxes actually payable by the Parent and its Subsidiaries attributable to the repatriation of such proceeds).

“Facilities” means, collectively, the US Facility and the Canadian Facility.

“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreements implementing any of the foregoing, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any of the foregoing.

“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate charged to the US Administrative Agent (in its individual capacity) on such day on such transactions as determined by the US Administrative Agent.

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“Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System or any of its successors.

“Fee Letter” means (a) that certain engagement letter dated April 15, 2019, by and among the Parent Guarantors, the Borrowers, Wells Fargo, and Wells Fargo Securities, LLC, and (b) that certain fee letter dated the Amendment No. 1 Effective Date, by and among the Parent Guarantors, the Borrowers, and Wells Fargo.

“Financial Statements” means the consolidated financial statements of the Parent and its Restricted Subsidiaries, including statements of income, retained earnings, changes in equity and cash flow for such period as well as a balance sheet as of the end of such period, all to be prepared in accordance with GAAP.

“Fixed Charges” means, with respect to any fiscal period and with respect to Parent and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP, the sum, without duplication, of (a) Interest Expense paid (other than interest paid-in-kind, amortization of financing fees, and other non-cash Interest Expense) during such period, (b) scheduled principal payments in respect of Debt that are required to be paid during such period, and (c) all Restricted Payments paid in cash during such period.

“Fixed Charge Coverage Ratio” means, as of the end of any fiscal quarter, and with respect to Parent and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP, the ratio of (a) EBITDA for the four-fiscal quarter period then ended minus all federal, state, provincial and local income Taxes required to be paid during such four-fiscal quarter period minus Capital Expenditures made (to the extent not already incurred in a prior four-fiscal quarter period) or incurred during such four-fiscal quarter period to (b) Fixed Charges for such four-fiscal quarter period; provided that, in any event, EBITDA, Capital Expenditures and Fixed Charges attributable to Restricted Subsidiaries that are not Credit Parties shall not constitute more than 15% of such respective amounts.

“Foreign Credit Party” has the meaning assigned in Section 9.14.

“Foreign Currency” means any currency other than Dollars.

“Foreign Lender” means any Lender that is not a “US Person.”

“Foreign Subsidiary” means (a) any Subsidiary organized under the laws of any jurisdiction other than the United States or any state of the United States, or the District of Columbia, (b) any US Subsidiary that has no material assets other than the Debt or Equity Interests of one or more subsidiaries organized under the laws of any jurisdiction other than the United States or any state of the United States or the District of Columbia, (c) any US Subsidiary that is disregarded as an entity separate from its owner for U.S. federal tax purposes and the sole owner of which for such purposes is an entity organized under the laws of any jurisdiction other than the United States or any state of the United States, or the District of Columbia, and (d) any other US Subsidiary acquired after the Closing Date that is a Subsidiary of an entity organized under the laws of any jurisdiction other than the United States or any state of the United States, or the District of Columbia (the “foreign parent”) so long as such foreign parent also becomes a Subsidiary of the US Borrower as part of such acquisition and such domestic subsidiary structure was not effected in contemplation of such acquisition.

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“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to Issuing Lender, such Defaulting Lender’s US Pro Rata Share of the outstanding Letter of Credit Obligations other than Letter of Credit Obligations as to which such Defaulting Lender’s participation obligation has been funded by it, reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof and (b) with respect to the Swing Line Lender, such Defaulting Lender’s US Pro Rata Share of outstanding Swing Line Advances other than Swing Line Advances as to which such Defaulting Lender’s participation obligation has been funded by it or reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

“Funded Debt” means, at any date, the aggregate principal amount of the following, without duplication:

“GAAP” means United States of America generally accepted accounting principles as in effect from time to time, applied on a basis consistent with the requirements of Section 1.3.

“Governmental Authority” means the government of the United States of America, Canada or any other nation, or of any political subdivision thereof, whether state, provincial or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Guarantors” means the US Guarantors and the Canadian Guarantors.

“Guaranty” means, individually and collectively, the guarantees or amended and restated guarantees, substantially in the form of Exhibit C or such other form reasonably acceptable to the Guarantor executing the same and the Administrative Agents.

“Hawk Waiver Agreement” means a lien waiver and collateral access agreement in form and substance reasonably satisfactory to the US Administrative Agent covering the premises located at the following addresses: (1) P.O. Box 569, Linden, Alberta, T0M1J0, Canada, and (ii) 202 6th St. NW Linden, Alberta T0M 1J0.

“Hazardous Substance” means any substance or material identified as hazardous or extremely hazardous pursuant to CERCLA and those regulated as hazardous or toxic under any other Environmental Law, including without limitation pollutants, contaminants, petroleum, petroleum products, radionuclides, and radioactive materials.

“Hazardous Waste” means any substance or material regulated or designated as a hazardous waste pursuant to any Environmental Law.

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“Hedging Arrangement” means a hedge, call, swap, collar, floor, cap, option, forward sale or purchase or other contract or similar arrangement (including any obligations to purchase or sell any commodity or security at a future date for a specific price) which is entered into to reduce or eliminate or otherwise protect against the risk of fluctuations in prices or rates, including interest rates, foreign exchange rates, commodity prices and securities prices, including any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

“Income Tax Expense” means for the Parent and its Restricted Subsidiaries, on a consolidated basis for any period, all foreign, state and federal taxes based on income or profits (including without limitation Texas franchise taxes) paid or due to be paid during such period.

“Increase Date” has the meaning set forth in Section 2.17(b).

“Increasing Lender” has the meaning set forth in Section 2.17(a).

“Increased Reporting Event” means if Availability is less than 12% of the Borrowing Base then in effect.

“Increased Reporting Period” means the period commencing after the occurrence of an Increased Reporting Event and continuing until the date when no Increased Reporting Event has occurred for 30 consecutive days.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Borrower under any Credit Document and (b) to the extent not otherwise described in (a), Other Taxes.

“Indemnitee” has the meaning set forth in Section 9.2(a).

“Interest Expense” means, for any period and with respect to any Person, as determined in accordance with GAAP, total cash interest expense (net of gross interest income of the Parent and its Subsidiaries), letter of credit fees and other fees and expenses incurred by such Person in connection with any Debt for such period whether paid or accrued (including that are attributable to obligations which have been or should be, in accordance with GAAP, recorded as Capital Leases), including, without limitation, all commissions, discounts, and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing, fees owed with respect to the Secured Obligations, and net costs under Hedging Arrangements entered into addressing interest rates (but excluding (a) fees and expenses associated with the consummation of the Transactions (whether incurred before or after the Closing Date), (b) fees and expenses associated with the permitted issuance of Debt or Equity Interests, whether or not consummated and (c) annual agency fees paid to the US Administrative Agent; provided that, Interest Expense shall be determined after giving effect to any net payments made or received by Parent and its Subsidiaries with respect to interest Hedging Arrangements and shall exclude upfront costs associated with any Hedging Arrangements).

“Interest Period” means for each Eurocurrency Advance comprising part of the same Borrowing, the period commencing on the date of such Eurocurrency Advance is made or deemed made and ending on the last day of the period selected by the applicable Borrower pursuant to the provisions below and Section 2.4, and thereafter, each subsequent period commencing on the day following the last day of the immediately preceding Interest Period and ending on the last day of the period selected by the applicable Borrower pursuant to the provisions below and Section 2.4.  The duration of each such Interest Period shall be (i) for Eurocurrency Advances denominated in Dollars, one, three or six months (or 12 months if agreed

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to by all the relevant affected Lenders), and (ii) for Eurocurrency Advances denominated in any Foreign Currency, one, three or six months, provided that:

“Inventory” means, with respect to any Person, the inventory of every nature and description, including all goods, merchandise and finished goods now owned or hereafter acquired and held for sale or lease or furnished or to be furnished under contracts for service and all additions and accessions thereto and all documents of title evidencing or representing any part thereof.

“Investment” means, as to any Person, any direct or indirect (a) purchase or other acquisition of capital stock or other securities of another Person, (b) loan, advance or capital contribution to, guarantee (by guaranty or other arrangement) or assumption of Debt of, or purchase or other acquisition of any other Debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person, or (c) Acquisition.  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment, but with respect to any joint venture Investment by such Person, net of any cash distributions actually received by such Person on account of such Investment (such distributions being deemed to reduce the total amount of such Investment in such joint venture).

“Issuing Lender” means Wells Fargo in its capacity as a Lender that issues Letters of Credit for the account of either Borrower or any of its Subsidiaries pursuant to the terms of this Agreement.

“Joint Venture” means, with respect to any Person at any date, any corporation, limited liability company, partnership, association or other entity as to which less than a majority of whose outstanding Voting Securities shall at any time be owned by such Person or one or more Subsidiaries of such Person. 

“JV Net Income” means as to a Joint Venture, the Net Income of such Joint Venture adjusted by adding thereto, without duplication and in each case only to the extent deducted in determining such Net Income, the sum of (a) non-cash impairment charge or asset write-off and the amortization of intangibles, and (b) other non-cash charges, non-cash expenses and non-cash losses.

“Judgment Currency” has the meaning set forth in Section 9.20.

“Lead Arranger” means Wells Fargo Securities, LLC in its capacity as a lead arranger and sole bookrunner.

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“Legal Requirement” means any law, statute, ordinance, decree, requirement, order, judgment, rule, regulation, legally binding determination of an arbitrator (or official interpretation of any of the foregoing) of, and the terms of any license or permit issued by, any Governmental Authority, including, but not limited to, Regulations T, U and X.

“Lenders” means the Persons listed on the signature pages hereto as Lenders, any other Person that shall have become a Lender hereto pursuant to Section 2.14, and any other Person that shall have become a Lender hereto pursuant to an Assignment and Acceptance, but in any event, excluding any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance.  Unless the context otherwise requires, the term “Lenders” references the US Facility Lenders, the Swing Line Lender and the Canadian Facility Lenders.

“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the US Borrower and the US Administrative Agent.

“Lending Party” means the Administrative Agents, the Issuing Lender, the Swing Line Lender, or any Lender.

“Letter of Credit” means any standby letter of credit or documentary letter of credit issued or deemed to be issued by the Issuing Lender for the account of any Credit Party pursuant to the terms of this Agreement, in such form as may be agreed by the applicable Borrower and the Issuing Lender.  Letters of Credit include the Existing Letters of Credit.

“Letter of Credit Application” means the Issuing Lender standard form letter of credit application for standby letters of credit which has been executed by the applicable Borrower and accepted by the Issuing Lender in connection with the issuance of a Letter of Credit.

“Letter of Credit Documents” means all Letters of Credit, Letter of Credit Applications and amendments thereof, and agreements, documents, and instruments entered into in connection therewith or relating thereto.

“Letter of Credit Exposure” means, at the date of its determination by the US Administrative Agent, the Dollar Equivalent of the aggregate outstanding undrawn amount of Letters of Credit plus the Dollar Equivalent of the aggregate unpaid amount of all of the Borrowers’ payment obligations under drawn Letters of Credit.

“Letter of Credit Maximum Amount” means $2,500,000; provided that, on and after the Maturity Date, the Letter of Credit Maximum Amount shall be zero.

“Letter of Credit Obligations” means any obligations of the Borrowers under this Agreement in connection with the Letters of Credit, and in determining such amount, the Dollar Equivalent thereof.

“Leverage Ratio” means, as of the end of each fiscal quarter, the ratio of (a) the consolidated Funded Debt of the Parent as of the last day of such fiscal quarter to (b) EBITDA for the four fiscal quarter period then ended; provided that, in any event, EBITDA, attributable to Restricted Subsidiaries that are not Credit Parties shall not constitute more than 15% of consolidated EBITDA.

“Lien” means any mortgage, lien, pledge, charge, deed of trust, security interest, or encumbrance to secure or provide for the payment of any obligation of any Person, whether arising by contract, operation

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of law, or otherwise (including the interest of a vendor or lessor under any conditional sale agreement, Capital Lease, or other title retention agreement).

“Liquid Investments” means (a) readily marketable direct full faith and credit obligations of the United States of America or any state thereof or the Government of Canada or any province thereof or obligations unconditionally guaranteed by the full faith and credit of the United States of America or any state thereof or the Government of Canada or any province thereof; (b) readily marketable direct full faith and credit obligations of any state of the United States of America or any political subdivision thereof or obligations unconditionally guaranteed by the full faith and credit of such state of the United States of America or political subdivision thereof, (c) commercial paper issued by (i) any Lender or any Affiliate of any Lender or (ii) any commercial banking institutions or corporations rated at least P-1 by Moody’s or A-1 by S&P (or the equivalent by DBRS); (d) certificates of deposit, time deposits, overnight bank deposits and bankers’ acceptances issued by (i) any of the Lenders or (ii) any other commercial banking institution which is a member of the Federal Reserve System or is listed on Schedule I or II of the Bank Act (Canada) and has a combined capital and surplus and undivided profits of not less than $250,000,000 and rated Aa by Moody’s or AA by S&P (or the equivalent by DBRS); (e) repurchase agreements which are entered into with any of the Lenders or any major money center banks included in the commercial banking institutions described in clause (c) and which are secured by readily marketable direct full faith and credit obligations of the government of the United States of America, the Government of Canada or any agency thereof; (f) investments in any money market fund which holds investments substantially of the type described in the foregoing clauses (a) through (e); and (g) other investments made through the US Administrative Agent or its Affiliates and approved by the US Administrative Agent.  All the Liquid Investments described in clauses (a) through (e) above shall have maturities of not more than 365 days from the date of issue.

“Liquidity” means, as of a date of determination, the amount equal to (a) Availability plus (b) readily and immediately available cash held in deposit accounts of any Restricted Entity (other than the Cash Collateral Account) on such date; provided that, such deposit accounts and the funds therein shall be unencumbered and free and clear of all Liens and other third party rights other than a Lien in favor of the applicable Administrative Agent pursuant to Security Documents and the Liens described in Section 6.2(g).

“Majority Lenders” means, as of the date of determination, (a) at any time when there are more than two Lenders, two or more Lenders holding greater than 50% of the aggregate Maximum Exposure Amount and (b) at any time when there are one or two Lenders, all Lenders;  provided that, (i) in any event, if there are two or more Lenders, the Maximum Exposure Amount of any Defaulting Lender shall be excluded for purposes of making a determination of Majority Lenders unless all Lenders are Defaulting Lenders, (ii) for purposes of this definition, Letter of Credit Exposure which is not reallocated or Cash Collateralized in accordance with Section 2.16 shall be deemed to be held by the Lender that is the Issuing Lender, and (iii) the aggregate Maximum Exposure Amount of any Lender and its Affiliates shall be treated as the Maximum Exposure Amount of one Lender for purposes of this definition.

“Material Adverse Change” means a material adverse effect on (a) the business, assets, financial condition or results of operations, in each case, of the Restricted Entities, taken as a whole, (b) the rights and remedies (taken as a whole) of the Administrative Agents under any Credit Document or (c) the ability of the Credit Parties (taken as a whole) to perform their payment obligations under any Credit Document.

“Maturity Date” means the earlier of (a) May 1, 2023, and (b) the earlier termination in whole of the Commitments pursuant to Section 2.1(c)(i) or (d) or ARTICLE 7.

“Maximum Exposure Amount” means, at any time for each Lender, the sum of (a) the unfunded US Commitment and Canadian Commitment held by such Lender at such time, if any, plus (b) the US

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Outstandings held by such Lender at such time (with the aggregate amount of such Lender's risk participation and funded participation in the Letter of Credit Obligations and Swing Line Advances being deemed "held" by such Lender for purposes of this definition), plus (c) the Canadian Outstandings held by such Lender at such time.

“Maximum Rate” means the maximum nonusurious interest rate under applicable Legal Requirement.

“Mortgage” means each mortgage or deed of trust in form reasonably acceptable to the US Administrative Agent and the US Borrower or the Canadian Administrative Agent and the Canadian Borrower, as applicable, executed by any Credit Party to secure all or a portion of the Secured Obligations.

“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto which is a nationally recognized statistical rating organization.

“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA to which any Borrower or any member of the Controlled Group is making or accruing an obligation to make contributions.

“Net Income” means, for any period and with respect to any Person, the net income (or loss) for such period for such Person on a consolidated basis after taxes as determined in accordance with GAAP, excluding, however, (a) the cumulative effect of any change in GAAP, (b) any realized or unrealized gain or loss in respect of (i) any obligation under any Hedging Arrangement as determined in accordance with GAAP and/or (i) any other derivative instrument pursuant to, in the case of this clause (i), Financial Accounting Standards Board’s Accounting Standards Codification No. 815- Derivatives and Hedging, and (c) any realized or unrealized foreign currency exchange gain or loss (including any currency re-measurement of Indebtedness, any net gain or loss resulting from Hedging Arrangements for currency exchange risk associated with the foregoing or any other currency related risk and any gain or loss resulting from intercompany Indebtedness). For the avoidance of doubt, in determining net income, gross interest income shall be applied to increase income or decrease interest expense but not both.

“Non-Consenting Lender” means any applicable Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders, as applicable, in accordance with the terms of Section 9.3 and (b) has been approved by the Majority Lenders, the US Majority Lenders or the Canadian Majority Lenders, as applicable.

“Non-Credit Party” means any Restricted Subsidiary that is not a Credit Party.

“Non-Defaulting Lender” means any Lender that is not then a Defaulting Lender.

“Non-ordinary Course Asset Sales” means (a) any sale, transfer or other Disposition made by any Restricted Entity of any business, division or enterprise, including the associated assets or operations whether in a single transaction or related series of transactions or (b) any sale, transfer or other Disposition by any Restricted Entity of the Equity Interest in any Subsidiary whether in a transaction or related series of transactions, which sale, transfer or other Disposition causes such Person to cease to be a Subsidiary hereunder.

“Notes” means the US Notes, the Canadian Notes and the Swing Line Note.

“Notice” has the meaning assigned to such term in Section 9.9(b)(ii).

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“Notice of Intent to Cure” shall have the meaning set forth in Section 7.7 hereof.

“Notice of Borrowing” means a Notice of US Borrowing, a Notice of Canadian Borrowing or any notice of, or request for, a Swing Line Borrowing.

“Notice of Continuation or Conversion” means a notice of continuation or conversion signed by the applicable Borrower in substantially the same form as Exhibit F.

“Notice of Optional Payment” means a notice of payment signed by a Responsible Officer of the US Borrower in substantially the same form as Exhibit G.

“Notice of US Borrowing” means a notice of borrowing signed by the applicable Borrower in substantially the same form as Exhibit E-1.

“Notice of Canadian Borrowing” means a notice of borrowing signed by the Canadian Borrower in substantially the same form as Exhibit E-2.

“Obligations” means all principal, interest (including post-petition interest), fees, reimbursements, indemnifications, and other amounts now or hereafter owed by any of the Credit Parties to the Lenders, the Issuing Lender, the Swing Line Lender or the Administrative Agents under this Agreement and the Credit Documents, including, the Letter of Credit Obligations, and any increases, extensions, and rearrangements of those obligations under any amendments, supplements, and other modifications of the documents and agreements creating those obligations.

“OFAC” means The Office of Foreign Assets Control of the US Department of the Treasury.

“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Advance or Credit Document).

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.14).

“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the Federal Funds Rate and (b) with respect to any amount denominated in any Foreign Currency, the rate of interest per annum at which overnight deposits in such Foreign Currency, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of the US Administrative Agent in the applicable offshore interbank market for such Foreign Currency to major banks in such interbank market.

“Parent” has the meaning set forth in the preamble of this Agreement.

“Participant” has the meaning assigned to such term in Section 9.7(d).

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“Participant Register” has the meaning specified in Section 9.7(d).

“Participating Member State” means each state so described in any EMU Legislation.

“Patriot Act” means the USA Patriot Act (Title III of 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 Acquisition” means an Acquisition that is permitted under Section 6.4.

“Permitted Asset Sale” means any Asset Sale that is permitted under Section 6.7.

“Permitted Debt” has the meaning set forth in Section 6.1.

“Permitted Discretion” means, with respect to any Person, a determination or judgment made by such Person in the exercise of reasonable (from the perspective of a secured asset-based lender) credit or business judgment and in good faith.

“Permitted Holder” means (a) Advent International Corporation and (b) Controlled and managed funds of Advent International Corporation.

“Permitted Investments” has the meaning set forth in Section 6.3.

“Permitted Liens” has the meaning set forth in Section 6.2.

“Person” means an individual, partnership, corporation (including a business trust), joint stock company, trust, limited liability company, limited liability partnership, unincorporated association, joint venture, or other entity, or a government or any political subdivision or agency thereof, or any trustee, receiver, custodian, or similar official.

“Plan” means an employee benefit plan (other than a Multiemployer Plan) maintained for employees of the Restricted Entities or any member of the Controlled Group and covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code.

“Platform” has the meaning set forth in Section 9.9(b)(i).

“PPSA” means the Personal Property Security Act (Alberta) or comparable legislation in effect in any other province or territory of Canada or any regulations promulgated thereunder.

“Prime Rate” means the per annum rate of interest established from time to time by the US Administrative Agent at its principal office in San Francisco as its prime rate, which rate may not be the lowest rate of interest charged by such bank to its customers.

“Priming Liens” means materialmen’s, mechanics’, carriers’, workmen’s, landlords’, suppliers’ and repairmen’s liens, and other similar liens arising in the ordinary course of business (whether imposed by law or under customary contracts entered into in the ordinary course of business), including Liens in favor of a processor encumbering Inventory that is being processed and in possession of such processor.

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“Property” of any Person means any property or assets (whether real, personal, or mixed, tangible or intangible) of such Person.

“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Guarantor that has total assets exceeding $10,000,000 at the time the relevant guaranty or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

“Rate” has the meaning set forth in Section 1.4.

“Receivables” of any Person means, at any date of determination thereof, the unpaid portion of the obligation, as stated on the respective invoice or other writing of a customer of such Person and created in the ordinary course of its business, that arise out of such Person’s sale of goods or rendition of services.

“Recipient” means (a) the applicable Administrative Agent, (b) any Lender, (c) the Swing Line Lender and (d) the Issuing Lender, as applicable.

“Register” has the meaning set forth in Section 9.7(c).

“Regulations T, U, and X” means Regulations T, U, and X of the Federal Reserve Board, as each is from time to time in effect, and all official rulings and interpretations thereunder or thereof.

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, representatives, agents and advisors of such Person and of such Person’s Affiliates, and each of their respective heirs, successors and assigns.

“Release” shall have the meaning set forth in CERCLA.

“Relevant Governmental Body” means, with respect to any given Benchmark, (a) the central bank for the currency applicable to such Benchmark or any central bank or other supervisor that is responsible for supervising either (i) such Benchmark or (ii) the administrator of such Benchmark or (b) any working group or committee officially endorsed or convened by (i) the central bank for the currency applicable to such Benchmark, (ii) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark or (B) the administrator of such Benchmark, (iii) a group of those central banks or other supervisors or (iv) the Financial Stability Board or any part thereof.

“Removal Closing Date” has the meaning set forth in Section 8.6(b).

“Repeat Precision” means Repeat Precision, LLC, a Texas limited liability company, which is a Joint Venture of a third Person and Pioneer NCS Energy Holdco, LLC, a Restricted Subsidiary and a Guarantor.

“Repeat Precision Investment” means (a) the Investment by the US Borrower or any Subsidiary with one of the Borrower’s or a Subsidiary’s manufacturing partners whereby Repeat Precision was created for purposes of manufacturing parts that are used or useful in the oil field service industry, and (b)

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Investment made or held by the US Borrower or any Subsidiary, whether directly or indirectly, in Repeat Precision, and any other entities related thereto.

 “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA (other than any such event not subject to the provision for 30-day notice to the PBGC under the regulations issued under such section).

“Resignation Closing Date” has the meaning set forth in Section 8.6(a).

“Response” shall have the meaning set forth in CERCLA.

“Responsible Officer” means (a) with respect to any Person that is a corporation, such Person’s Chief Executive Officer, President, Chief Financial Officer, Chief Operating Officer, General Counsel, or Vice President (or any other officer of such Person with responsibilities associated with the foregoing officers and who is authorized to bind such Person), (b) with respect to any Person that is a limited liability company, if such Person has officers, then such Person’s Chief Executive Officer, President, Chief Financial Officer, Chief Operating Officer, Chief Legal Officer, or Vice President (or any other officer of such Person with responsibilities associated with the foregoing officers and who is authorized to bind such Person), and if such Person is managed by members, then the Chief Executive Officer, President, Chief Financial Officer, Chief Operating Officer, Chief Legal Officer, or Vice President of such Person’s managing member (or any other officer of such Person’s managing member with responsibilities associated with the foregoing officers and who is authorized to bind such Person), and if such Person is managed by managers, then a manager (if such manager is an individual) or the Chief Executive Officer, President, Chief Financial Officer, Chief Operating Officer, General Counsel, or Vice President of such manager (or any other officer of such Person’s manager with responsibilities associated with the foregoing officers and who is authorized to bind such Person) (if such manager is an entity), and (c) with respect to any Person that is a general partnership, limited partnership or a limited liability partnership, the Chief Executive Officer, President, Chief Financial Officer, Chief Operating Officer, General Counsel, or Vice President of such Person’s general partner or partners (or any other officer of such Person’s general partner or partners with responsibilities associated with the foregoing officers and who is authorized to bind such Person).

“Restricted Entity” means any of the Parent and its Restricted Subsidiaries, including the Borrowers.

“Restricted Payment” means, with respect to any Person, any direct or indirect dividend or distribution (whether in cash, securities or other Property) or any direct or indirect payment of any kind or character (whether in cash, securities or other Property) made in connection with the Equity Interest of such Person, including those dividends, distributions and payments made in consideration for or otherwise in connection with any retirement, purchase, redemption or other acquisition of any Equity Interest of such Person, or any options, warrants or rights to purchase or acquire any such Equity Interest of such Person; provided that the term “Restricted Payment” shall not include any (a) dividend, distribution or payment payable solely in common Equity Interests of such Person (including such distribution paid on any deemed repurchases of Equity Interests pursuant to the terms of any employee benefit plan) or (b) warrants, options or other rights to purchase such common Equity Interests.

“Restricted Subsidiary” means, as to any Person, each Subsidiary of such Person that is not an Unrestricted Subsidiary.

“S&P” means Standard & Poor’s Rating Agency Group, a subsidiary of S&P Global Inc., or any successor thereof which is a national credit rating organization.

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“Same Day Funds” means (a) with respect to disbursements and payments in Dollars or Canadian Dollars, immediately available funds, and (b) with respect to disbursements and payments in any other Foreign Currency, same day or other funds as may be reasonably determined by the US Administrative Agent or the Issuing Lender, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in such Foreign Currency.

“Sanctions” has the meaning set forth in Section 4.19.

“Sanctioned Person” has the meaning set forth in Section 4.19.

“Schedule I Bank” means a bank that is a Canadian chartered bank listed on Schedule I under the Bank Act (Canada).

“Schedule II Bank” means a bank that is a Canadian chartered bank listed on Schedule II under the Bank Act (Canada).

“Schedule II/III Reference Banks” means Wells Fargo Bank, N.A. Canadian Branch and such other Schedule II Banks and/or Schedule III Banks as are agreed to from time to time by the Canadian Borrower and the Canadian Administrative Agent; provided that there shall be no more than three Schedule II/III Reference Banks at any time.

“Schedule III Bank” means a bank that is a Canadian bank listed on Schedule III under the Bank Act (Canada).

“SEC” means the Securities and Exchange Commission.

“Secured Obligations” means (a) the Obligations, (b) the Banking Services Obligations and (c) the Swap Obligations (other than the Excluded Swap Obligations).

“Secured Parties” means US Secured Parties and the Canadian Secured Parties.

“Security Documents” means, collectively, the Mortgages, US Security Agreement, the Canadian Security Agreement and any and all other instruments, documents or agreements, including any agreement in respect of the Cash Collateral Account, now or hereafter executed by any Credit Party or any other Person to secure all or a portion of the Secured Obligations.

“Serial Number” means a serial number within the meaning of the PPSA in effect in the province of Alberta.

“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.

“Solvent” means, as to any Person, on the date of any determination (a) the sum of the debt (including, without limitation, contingent liabilities) of such Person and its Restricted Subsidiaries, on a consolidated basis, does not exceed the fair value of the present assets of such Person and its Restricted Subsidiaries, on a consolidated basis; (b) the present fair salable value of the assets of such Person and its Restricted Subsidiaries is not less than the amount that will be required to pay the probable liability of such Person and its Restricted Subsidiaries on their debts (including, without limitation, contingent liabilities) as they become absolute and matured; (c) the capital of such Person and its Restricted Subsidiaries, on a

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consolidated basis, is not unreasonably small in relation to the business and transactions of the Parent or its Restricted Subsidiaries, on a consolidated basis, contemplated as of the date hereof; (d) such Person and its Subsidiaries, on a consolidated basis, do not intend to incur, or believe that they will incur, debts (including, without limitation, current obligations and contingent liabilities) beyond their ability to pay such debt as they mature in the ordinary course of business; and (e) such Person and its Restricted Subsidiaries have not transferred, concealed or removed assets with the intent to hinder, delay or defraud any creditor of such Person.  For the purposes hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

“Specified Information” has the meaning set forth in Section 9.8.

“Specified Transaction” means, with respect to any measurement period, (a) the Transactions, (b) any proposed or actual, as applicable, Acquisition or Non-ordinary Course Asset Sale, (c) any Disposition of all or substantially all of the assets or Equity Interests of a Restricted Subsidiary not prohibited by this Agreement or (d) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary.

“Specified Event of Default” means any Event of Default occurring under (a) Section 7.1(a),  (b) Section 7.1(c)(i) as result of a breach under Section 6.16, or (c) Section 7.1(g).

“Subject Lender” has the meaning set forth in Section 2.14.

“Subordinated Debt” means any Debt of the Parent or its Subsidiaries to the extent permitted under Section 6.1(n) and so long as (a) such Debt is unsecured, (b) the scheduled maturity date for such Debt is at least six months past the later of the Maturity Date, as such date is in effect at the time such Debt is incurred, (c) such Debt has no amortization, scheduled prepayments or other mandatory payments other than at the scheduled maturity date therefor and other than any AHYDO “catch-up” payment, (d) such Debt has no cash interest payments, and (e) such Debt is subject to the subordination terms set forth in Schedule 6.19 attached hereto; provided that, (i) such Debt may permit interest payments paid in kind, (ii) such Debt may be convertible into common Equity Interests of the Person issuing such Debt or common Equity Interests of Parent, and (iii) so long as no Default exists or would arise therefrom, such Debt may be prepaid with Equity Issuance Proceeds and the interest accrued on the principal amount so prepaid may be paid with Equity Issuance Proceeds.

“Subsidiary” means, with respect to any Person (the “holder”) at any date, any corporation, limited liability company, partnership, association or other entity, a majority of whose outstanding Voting Securities shall at any time be owned by the holder or one more Subsidiaries of the holder.  Unless expressly provided otherwise, all references herein and in any other Credit Document to any “Subsidiary” or “Subsidiaries” means a Subsidiary or Subsidiaries of the Parent.

“Suppler Agreement” means that certain Supplier Agreement dated effective as if July 10, 2020 between AERO Lift Machine LLC and the Canadian Borrower, as such agreement is in effect on the Amendment No. 1 Effective Date and in the form provided to the Administrative Agent prior to the Amendment No. 1 Effective Date.

“Swap Counterparty” means any counterparty to a Hedging Arrangement with any Credit Party; provided that (a) such counterparty is a Lender or an Affiliate of a Lender at the time such Hedging Arrangement is entered into or (b) such Hedging Arrangement was entered into prior to the Closing Date and such counterparty was a Lender or an Affiliate of a Lender on the Closing Date.

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“Swap Obligations” means the obligations of any Credit Party owing to any Swap Counterparty under any Hedging Arrangement; provided that (a) when any Swap Counterparty assigns or otherwise transfers any interest held by it under any Hedging Arrangement to any other Person pursuant to the terms of such agreement, the obligations thereunder shall constitute Swap Obligations only if such assignee or transferee is also then a Lender or an Affiliate of a Lender and (b) if a Swap Counterparty ceases to be a Lender or an Affiliate of a Lender hereunder, obligations owing to such Swap Counterparty shall be included as Swap Obligations only to the extent such obligations arise from transactions under such individual Hedging Arrangements (and not the Master Agreement between such parties) entered into prior to the time such Swap Counterparty ceases to be a Lender or an Affiliate of a Lender hereunder, without giving effect to any extension, increases, or modifications thereof which are made after such Swap Counterparty ceases to be a Lender or an Affiliate of a Lender hereunder.

“Swap Termination Value” means, in respect of any one or more Hedging Arrangements, after taking into account the effect of any legally enforceable netting agreement relating to such Hedging Arrangements, (a) for any date on or after the date such Hedging Arrangements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedging Arrangements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Arrangements (which may include a Lender or any Affiliate of a Lender).

“Swing Line Advance” means an advance by the Swing Line Lender to the US Borrower as part of a Swing Line Borrowing.

“Swing Line Borrowing” means the Borrowing consisting of a Swing Line Advance made by the Swing Line Lender pursuant to Section 2.3 or, if an AutoBorrow Agreement is in effect, any transfer of funds pursuant to such AutoBorrow Agreement.

“Swing Line Lender” means Wells Fargo.

“Swing Line Note” means the promissory note made by the US Borrower payable to the Swing Line Lender evidencing the indebtedness of the US Borrower to the Swing Line Lender resulting from Swing Line Advances in substantially the same form as Exhibit D-3.

“Swing Line Payment Date” means (a) if an AutoBorrow Agreement is in effect, the earliest to occur of (i) the date required by such AutoBorrow Agreement, (ii) two Business Days after demand is made by the Swing Line Lender and (iii) the Maturity Date, or (b) if an AutoBorrow Agreement is not in effect, the earlier to occur of (i) two Business Days after demand is made by the Swing Line Lender and (ii) the Maturity Date.

“Swing Line Sublimit Amount” means $2,500,000; provided that, on and after the Maturity Date, the Swing Line Sublimit Amount shall be zero.

“Target” with respect to an Acquisition means (a) the business, division or enterprise that is being acquired or (b) the Person that is being acquired (whether through a purchase of Equity Interest of such Person or a purchase of all or substantially all the assets of such Person).

“Tax Act” means the Income Tax Act (Canada).

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“Taxes” means all present or future taxes and other levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority that are in the nature of a tax, including any interest, additions to tax or penalties applicable thereto.

“Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body. 

“Termination Date” means the date on which all of the following events shall have occurred:  (a) the termination of all Commitments, (b) the termination of all Letters of Credit (other than Letters of Credit as to which other arrangements reasonably satisfactory to the Issuing Lender have been made), and (c) the payment in full of all outstanding Advances, Letter of Credit Obligations (other than with respect to Letters of Credit as to which other arrangements reasonably satisfactory to the Issuing Lender have been made) and all other Obligations payable under this Agreement and under any other Credit Document (other than contingent indemnification or expense reimbursement obligations for which no claim has been made); provided that, if any Commitment is thereafter reinstated or any such terminated Letter of Credit is reinstated or any such payment of any Obligation is thereafter is rescinded or must be otherwise restored by any holder of any of the Obligations, then the “Termination Date” is deemed not to have occurred.

“Termination Event” means (a) a Reportable Event with respect to a Plan, (b) the withdrawal of any Borrower or any member of the Controlled Group from a Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, (c) the filing of a notice of intent to terminate a Plan or the treatment of a Plan amendment as a termination under Section 4041(c) of ERISA, (d) the institution of proceedings to terminate a Plan by the PBGC, or (e) the appointment of, or the filing of an application for the appointment of, a trustee to administer any Plan pursuant to Section 4042(b) of ERISA.

“Transactions” means, collectively, (a) the closing of this Agreement on the Closing Date, and (b) the payment of fees, commissions and expenses in connection with each of the foregoing.

“Total Consideration” means, as to any Acquisition, the consideration in relation thereto paid in cash, Equity Interests, Debt, any other assumed liabilities (other than operating lease obligations and unknown contingent liabilities), other assets owned prior to the consummation of such Acquisition, or earn-outs, but excluding the value of any Equity Interests of the Parent (or any direct or indirect parent company) and the proceeds of issuances of Equity Interests of, or contributions to the equity of, the Parent.

“Type” has the meaning set forth in Section 1.4.

“Unadjusted Benchmark Replacement” means, with respect to a given Benchmark Replacement, such Benchmark Replacement excluding the Benchmark Replacement Adjustment for such Benchmark Replacement.

“Unrestricted Subsidiary” means (a) any Subsidiary of the Parent that is designated by a Responsible Officer of the Parent as an Unrestricted Subsidiary in accordance with Section 5.11, but only to the extent that: (i) except as permitted by ARTICLE 6, such Subsidiary is not party to any agreement, contract, arrangement or understanding with any Restricted Entity; (ii) except as permitted by Section 6.3, such Subsidiary is a Person with respect to which neither the Parent nor any of its Restricted Subsidiaries has any direct or indirect obligation (A) to subscribe for additional Equity Interests or (B) to maintain or preserve such Person’s financial condition or to cause such Person to achieve any specified levels of operating results; and (iii) such Subsidiary has not been re-designated as a Restricted Subsidiary under

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Section 5.11, and (b) any Subsidiary of a Subsidiary that becomes an Unrestricted Subsidiary pursuant to the preceding clause (a); provided that such Subsidiary of the Unrestricted Subsidiary must also comply with the preceding conditions.

“US” means the United States of America.

“US Administrative Agent” means Wells Fargo Bank, National Association.



“US Advance” means any advance made by a US Facility Lender or the Swing Line Lender to the US Borrower or the Canadian Borrower as part of a US Borrowing.

 “US Base Rate Advance” means an Advance that bears interest at the Adjusted Base Rate.

“US Borrowing” means a US Revolving Borrowing or a Swing Line Borrowing.

“US Commitment” means, for each US Facility Lender, the obligation of such US Facility Lender to advance to the relevant Borrower (including, for the avoidance of doubt, the US Borrower and the Canadian Borrower) the amount set forth opposite such US Facility Lender’s name on Schedule II as its US Commitment, or if such US Facility Lender has entered into any Assignment and Acceptance, set forth for such US Facility Lender as its US Commitment in the Register, as such amount may be reduced pursuant to Section 2.1(c)(i) or (d) or increased pursuant to Section 2.17; provided that, after the Maturity Date, the US Commitment for each US Facility Lender shall be zero.  The aggregate amount of all US Commitments on the Amendment No. 1 Effective Date is $25,000,000.00. 

“US Collateral” means all “Collateral” or “Mortgaged Property” or similar terms used in the US Security Documents and Mortgages pertaining to US real property, as applicable.  The US Collateral shall not include any Excluded Properties (US).

“US Credit Party” means the US Borrower and each US Guarantor.

“US Facility” means, collectively, (a) the revolving credit facility described in Section 2.1(a) and Section 2.1(f), (b) the swing line subfacility provided by the Swing Line Lender described in Section 2.3 and (c) the letter of credit subfacility provided or deemed to be provided by the Issuing Lender described in Section 2.2.

“US Facility Lenders” means Lenders having a US Commitment, or if such US Commitments have been terminated, Lenders that are owed US Advances and that hold any risk participation or funded participation in any Letter of Credit Exposure.

“US Guarantors” means the Persons that now or hereafter executes the Guaranty or a joinder or supplement thereto, including the Parent and the Intermediate Parent.

“US Majority Lenders” means (a) at any time when there are more than two US Facility Lenders, two or more US Facility Lenders holding greater than 50% of the sum of the unutilized US Commitments plus the US Outstandings (with the aggregate amount of each US Facility Lender's risk participation and funded participation in the Letter of Credit Obligations and Swing Line Advances being deemed “held” by such US Facility Lender for purposes of this definition) and (b) at any time when there are one or two US Facility Lenders, all US Facility Lenders; provided that, (i) in any event, if there are two or more US Facility Lenders, the US Commitment of, and the portion of the Advances and Letter of Credit Exposure held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of US

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Majority Lenders unless all US Facility Lenders are Defaulting Lenders, (ii) for purposes of this definition, Fronting Exposure as to Letters of Credit or Swing Line Advances which has not been reallocated or Cash Collateralized in accordance with Section 2.16 shall be deemed to be held by the Lender that is US Issuing Lender in the case of the Letters of Credit and by the Lender that is the Swing Line Lender in the case of Swing Line Advances, and (iii) the aggregate Maximum Exposure Amount of any Lender and its Affiliates shall be treated as the Maximum Exposure Amount of one Lender for purposes of this definition.

“US Note” means a promissory note made by the Borrowers payable to a US Facility Lender in the amount of such US Facility Lender’s US Commitment, in substantially the same form as Exhibit D-1.

“US Outstandings” means, as of any date of determination, the sum of (a) the Dollar Equivalent of the aggregate outstanding amount of all US Advances plus (b) the Letter of Credit Exposure plus (c) the aggregate outstanding amount of all Swing Line Advances.

“US Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code.

 “US Pro Rata Share” means, at any time with respect to any US Facility Lender, (i) the ratio (expressed as a percentage) of such US Facility Lender’s US Commitment at such time to the aggregate US Commitments at such time, (ii) if all of the US Commitments have been terminated, the ratio (expressed as a percentage) of such US Facility Lender’s aggregate outstanding US Advances at such time to the total aggregate outstanding US Advances at such time, or (iii) if no US Advances are then outstanding, then “US Pro Rata Share” shall mean the “US Pro Rata Share” most recently in effect, after giving pro forma effect to any Assignment and Acceptances.

 “US Revolving Borrowing” means a borrowing consisting of simultaneous US Advances of the same Type made by the US Facility Lenders pursuant to Section 2.1(a) or Converted by each US Facility Lender to US Advances of a different Type pursuant to Section 2.4(b).

“US Secured Parties” means the US Administrative Agent, the Swing Line Lender, the Issuing Lender, the other US Facility Lenders, the Banking Services Providers and Swap Counterparties who are owed any US Secured Obligations.

“US Security Agreement” means the pledge and security agreement, substantially in the form of Exhibit H-1.

“US Security Documents” means the US Security Agreement, and each other Security Document to which any Credit Party is a party and that purports to grant a Lien in the assets of any such Person in favor of the US Administrative Agent for the benefit of the Secured Parties.

“US Secured Obligations” means Secured Obligations that are owing by any Credit Party.

“US Subsidiary” means any Subsidiary of Parent organized under the laws of any State of the US or the District of Columbia.

 “US Tax Compliance Certificate” has the meaning assigned to such term in Section 2.13(g).

“VIN” means a vehicle identification number.

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“Voting Securities” means (a) with respect to any corporation, capital stock of the corporation having general voting power under ordinary circumstances to elect directors of such corporation (irrespective of whether at the time stock of any other class or classes shall have or might have special voting power or rights by reason of the happening of any contingency), (b) with respect to any partnership, any partnership interest or other ownership interest having general voting power to elect the general partner or other management of the partnership or other Person, and (c) with respect to any limited liability company, membership certificates or interests having general voting power under ordinary circumstances to elect managers of such limited liability company.

“Wells Fargo” means Wells Fargo Bank, National Association.

“Wells Fargo Canada” means Wells Fargo Bank, National Association, Canadian Branch.

“Wells Fargo Parties” means Wells Fargo, Wells Fargo Canada and Wells Fargo Securities, LLC.

“Write-Down and Conversion Powers” means, 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.

Computation of Time Periods

.  In this Agreement and in the other Credit Documents in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”.

Accounting Terms; Changes in GAAP

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Classes and Types of Advances

.  Advances are distinguished by “Class” and “Type”.  The “Class” of an Advance refers to the determination of whether such Advance is a US Advance, a Canadian Advance or a Swing Line Advance.  The “Type”, when used in respect of any Advance or Borrowing, refers to the Rate (as defined below) by reference to which interest on such Advances or on the Advances comprising such Borrowing is determined.  For purposes hereof, the term “Rate” shall include the Eurocurrency Rate, the Adjusted Base Rate, the CDOR Rate, the Canadian (Cdn) Base Rate, Canadian (US) Base Rate, and the Discount Rate applicable to Bankers’ Acceptances and B/A Equivalent Advances.

Miscellaneous

.  Article, Section, Schedule, and Exhibit references are to this Agreement, unless otherwise specified.  All references to instruments, documents, contracts, and agreements (including this Agreement or any other Credit Document) are references to such instruments, documents, contracts, and agreements as the same may be amended, restated, amended and restated, supplemented, and otherwise modified from time to time, unless otherwise specified and shall include all schedules and exhibits thereto unless otherwise specified.  Any reference herein to any Legal Requirement shall be construed as referring to such Legal Requirement as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time.  Any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns (subject to the restrictions contained herein).  The words “hereof”, “herein”, and “hereunder” and words of similar import when used in this Agreement or in any other Credit Document shall refer to this Agreement or such other Credit Document, as the case may be, as a whole and not to any particular provision of this Agreement or such other Credit Document, as the case may be.  The term “including” means “including, without limitation,”.  Paragraph headings have been inserted in this Agreement as a matter of convenience for reference only and it is agreed that such paragraph headings are not a part of this Agreement and shall not be used in the interpretation of any provision of this Agreement.

Foreign Currency

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(i)On each Computation Date, the US Administrative Agent shall determine the Agent’s Exchange Rate as of such Computation Date and deliver to the Issuing Lender and the US Borrower in writing the effective Agent’s Exchange Rate and the Dollar Equivalent amount of such determination.  The Agent’s Exchange Rate so determined shall become effective as of such Computation Date and shall remain effective through the next succeeding Computation Date.   

(ii)Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of an Advance or the issuance, amendment or extension of a Letter of Credit, an amount (such as a required minimum or multiple amount) is expressed in Dollars, but such Borrowing, Advance or Letter of Credit is denominated in a Foreign Currency, such amount shall be the equivalent in a Foreign Currency of such amount determined at the Exchange Rate for the purchase of such Foreign Currency with Dollars, as determined by the Administrative Agent on the Computation Date applicable to such amount (rounded to the nearest unit of such Foreign Currency, with 0.5 of a unit being rounded upward). 

Pro Forma Calculations

.  For purposes of all financial ratios and testing the covenants set forth in Section 6.16 or to determine whether a condition to a specific action has been or will be satisfied, such calculation shall be made after giving effect to any Specified Transaction  as follows: (a) consolidated Net Income and EBITDA shall be calculated on a pro forma basis for such event as set forth in the definition of EBITDA and (b) any Debt or other liabilities to be incurred or assumed or repaid or retired in connection therewith shall be deemed to have been consummated and incurred, assumed, repaid or retired as of the first day of the applicable measurement period with respect to such covenant, test or condition (and assuming all Debt so incurred or assumed bears interest during any portion of the applicable measurement period prior to the relevant event (i) in the case of fixed rate Debt, at the rate applicable thereto, or (ii) in the case of floating rate Debt, at the rates in effect on the date of determination).

Non‑Business Day Payments and Performance

.  Whenever any payment or the performance of any obligation or covenant hereunder or under any other Credit Document shall be stated to be due on a day other than a Business Day, payment or performance of such obligation or covenant shall be made on the next succeeding Business Day, and, if applicable, such extension of time shall in such case be included in the computation of payment of interest or fees, as the case may be; provided that if such extension would cause payment of interest on or principal of Eurocurrency Advances to be made in the next following calendar month, such payment shall be made on the next preceding Business Day.

Rates

.  The Administrative Agents do not warrant or accept responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the rates in the definition of “Eurocurrency Base Rate” or with respect to any rate that is an alternative or replacement for or successor to any such rate (including, without limitation, any Benchmark Replacement) or the effect of any of the foregoing, or of any Benchmark Replacement Conforming Changes.

Divisions

.  For all purposes under the Credit Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

US and Canadian Commitments

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(i)Any contrary provision of this Agreement or any other Credit Document notwithstanding, the Lenders hereby authorize the US Administrative Agent or the Swing Line Lender, as applicable, and either the US Administrative Agent or the Swing Line Lender, as applicable, may (but is not obligated to), in its sole discretion, knowingly and intentionally, continue to make US Advances to the Borrowers notwithstanding that a Borrowing Base Deficiency exists or would be created thereby, so long as (i) after giving effect to any such US Advances, the US Outstandings do not exceed the then effective Borrowing Base by more than 10% of such Borrowing Base, and (ii) after giving effect to any such US Advances, the US Outstandings do not exceed the aggregate US Commitments.  US Administrative Agent’s and Swing Line Lender’s authorization to make intentional US Advances pursuant to the immediately preceding sentence may be revoked at any time by the Majority Lenders delivering written notice of such revocation to Agent.  Any such revocation shall become effective prospectively upon US Administrative Agent’s receipt thereof.   The provisions of this Section 2.1(f) are for the exclusive benefit of the Administrative Agent and the Swing Line Lender, and the Lenders and are not intended to benefit Borrowers (or any other Credit Party) in any way. 

(ii)It is agreed that each Lender’s funded portion of the US Advances is intended by the Lenders to equal, at all times, such Lender’s US Pro Rata Share of the outstanding US Advances (including those made under the preceding Section 2.1(f)(i).  The US Administrative Agent shall promptly forward notice of the making of such US Advance (or its intention to make such US Advances) to the US Facility Lenders, and each US Facility Lender shall make available such US Facility Lender’s US Pro Rata Share of such US Advance to the US Administrative Agent.  The US Borrower hereby unconditionally and irrevocably authorizes, empowers, and directs (a) the US Administrative Agent to make such requests for US Advances to each US Facility Lender on behalf of the US Borrower notwithstanding that a Borrowing Base Deficiency exists or would be created thereby, and (b) the US Facility Lenders to make US Advances to the US Administrative Agent.  The US Administrative Agent and each US Facility Lender may record and otherwise treat the making of such US Advances as the making of a US Borrowing to the US Borrower under this Agreement as if requested by the US Borrower. 

Letters of Credit

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provided, however, that nothing contained in this paragraph (e) shall be deemed to constitute a waiver of any remedies of the Borrowers in connection with the Letters of Credit.

except that the applicable Borrower shall have a claim against the Issuing Lender, and the Issuing Lender shall be liable to, and shall promptly pay to, the applicable Borrower, to the extent of any direct, as opposed to consequential, damages suffered by the applicable Borrower which a court in a final, non-appealable finding rules were caused by the Issuing Lender’s willful misconduct or gross negligence in determining

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whether documents presented under a Letter of Credit comply with the terms of such Letter of Credit.  In furtherance and not in limitation of the foregoing, the Issuing Lender may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.  The responsibility of the Issuing Lender to the Borrower in connection with any draft presented for payment under any Letter of Credit issued to it shall, in addition to any payment obligation expressly provided for in such Letter of Credit, be limited to determining that the documents (including each draft) delivered under such Letter of Credit in connection with such presentment substantially conforms to the requirements under such Letter of Credit.

Swing Line Advances

.

Advances

.

(i) 11:00 a.m. (Houston, Texas time) on the third Business Day before the date of the proposed Borrowing, in the case of a Eurocurrency Advance denominated in Dollars,

(ii)11:00 a.m. (Houston, Texas time) on the fourth Business Day before the date of the proposed Borrowing, in the case of a Eurocurrency Advance denominated in any Foreign Currency or a B/A Advance,

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(iii) 11:00 a.m. (Houston, Texas time) on the Business Day before the date of the proposed Borrowing, in the case of a US Base Rate Advance,

(iv) 10:00 am (Houston, Texas time) on the Business Day before the date of the proposed Borrowing, in the case of a Canadian (US) Base Rate Advance or Canadian (Cdn) Base Rate Advance,

in each case, by the applicable Borrower to the applicable Administrative Agent, which shall give to each Lender under the applicable Facility prompt notice of such proposed Borrowing, by facsimile, electronic mail or telex.  Each Notice of Borrowing shall be by facsimile, telex or electronic mail (and if by electronic mail, via any “.pdf” or other similar electronic means), confirmed promptly by the applicable Borrower with a hard copy (other than with respect to notice sent by facsimile or electronic mail), specifying (i) the requested date of such Borrowing, (ii) the requested Type and Class of Advances comprising such Borrowing, (iii) the aggregate amount of such Borrowing, (iv) if such Borrowing is to be comprised of Eurocurrency Advances, specifying the requested Interest Period for each such Advance, (v) if such Borrowing is to be comprised of B/A Advances, the Contract Period for each such Advance, (vi) the applicable Borrower requesting such Borrowing, and (vii) the Designated Currency of such Borrowing.  In the case of a proposed Borrowing comprised of Eurocurrency Advances, the US Administrative Agent or Canadian Administrative Agent, as applicable, shall promptly notify each US Facility Lender or each Canadian Facility Lender, as applicable, of the applicable interest rate under Section 2.8(b).  Each applicable Lender shall, before 11:00 a.m. (Houston, Texas time) on the date of such Borrowing, make available for the account of its applicable Lending Office to the applicable Administrative Agent at its address referred to in Section 9.9, or such other location as the applicable Administrative Agent may specify by notice to the Lenders, in Same Day Funds, such Lender’s Applicable Pro Rata Share of such Borrowing.  After the applicable Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in ARTICLE 3, the applicable Administrative Agent will make such funds available to the applicable Borrower at its account with the applicable Administrative Agent or as otherwise directed by the applicable Borrower with written notice to the applicable Administrative Agent. 

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Prepayments

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Repayment

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Fees

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(i)The Borrowers agree to pay to the US Administrative Agent for the account of each US Facility Lender a Commitment Fee equal to the Applicable Margin on the average daily amount

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by which such US Facility Lender’s US Commitment exceeds the sum of (A) such US Facility Lender’s outstanding US Advances plus (B) such US Facility Lender’s US Pro Rata Share of the Letter of Credit Exposure, at the rate equal to the Applicable Margin for Commitment Fees for such period.  Such Commitment Fee is due quarterly in arrears on March 31, June 30, September 30, and December 31 of each year commencing on June 30, 2019, and on the Maturity Date.  For purposes of this Section 2.7(a) only, outstanding Swing Line Advances shall not reduce the amount of unused US Commitments.

(i)The Canadian Borrower agrees to pay to the Canadian Administrative Agent for the account of each Canadian Facility Lender a Commitment Fee equal to the Applicable Margin on the average daily amount by which such Canadian Facility Lender’s Canadian Commitment exceeds the sum of such Canadian Facility Lender’s outstanding Canadian Advances, at the rate equal to the Applicable Margin for Commitment Fees for such period.  Such Commitment Fee is due quarterly in arrears on March 31, June 30, September 30, and December 31 of each year commencing on June 30, 2019, and on the Maturity Date.

The Borrowers shall have no right to any refund of letter of credit fees previously paid by the Borrowers, including any refund claimed because any Letter of Credit is canceled prior to its expiration date.

Interest

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Illegality

.  Subject to Section 2.4(c), if any Lender shall notify either Borrower that the introduction of or any change in or in the interpretation of any law or regulation makes it unlawful, or that any central bank or other Governmental Authority asserts that it is unlawful, for such Lender or its applicable Lending Office to perform its obligations under this Agreement to make, maintain, or fund any Eurocurrency Advances or B/A Advances of such Lender then outstanding hereunder, (a) the applicable Borrower shall, no later than 11:00 a.m. (Houston, Texas, time) (i) if not prohibited by law, on the last day of the Interest Period for each outstanding Eurocurrency Advance or on the last day of the Contract Period for each outstanding B/A Advance, as applicable, or (ii) if required by such notice, on the second Business Day following its receipt of such notice, prepay all of the Eurocurrency Advances of such Lender then outstanding or defease all B/A Advances of such Lender then outstanding pursuant to Section 2.18, together with accrued interest on the principal amount prepaid or defeased to the date of such prepayment or defeasance and amounts, if any, required to be paid pursuant to Section 2.10 as a result of such prepayment being made on such date, (b) such Lender shall simultaneously make a Base Rate Advance in the applicable currency to the applicable Borrower on such date in an amount equal to the aggregate principal amount of the Eurocurrency Advances prepaid or B/A Advances defeased to such Lender, and (c) the right of the Borrowers to select Eurocurrency Advances or B/A Advances from such Lender for any subsequent Borrowing shall be suspended until such Lender shall notify the Borrowers that the circumstances causing such suspension no longer exist (which notice shall be given by such Lender promptly).  Each Lender agrees to use commercially reasonable efforts (consistent with its internal policies and legal and regulatory restrictions) to designate a different Lending Office if the making of such designation would avoid the effect of this paragraph and would not, in the reasonable judgment of such Lender, be otherwise disadvantageous to such Lender.

Breakage Costs

.  Upon demand of any Lender (with a copy to the applicable Administrative Agent) from time to time, the applicable Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

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including any loss of anticipated profits (but excluding any loss of Applicable Margin), any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Advance, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract; provided that the foregoing shall not apply to the defeasance of any B/A Advance as provided in Section 2.5.   For purposes of calculating amounts payable by the applicable Borrower to the Lenders under this Section 2.10, the requesting Lender shall be deemed to have (i) in the case of Eurocurrency Advances, funded the Eurocurrency Advances made by it at the Eurocurrency Base Rate used in determining the Eurocurrency Rate for such Advance by a matching deposit or other borrowing (including bankers’ acceptances) in the offshore interbank market for Dollars or the Foreign Currency, as applicable, for a comparable amount and for a comparable period, whether or not such Eurocurrency Advance was in fact so funded, and (ii) in the case of B/A Advances, made or accepted and purchased such B/A Advance with such Acceptance Fee calculated for a comparable amount and comparable period, whether or not such B/A Advance was in fact so made or accepted and purchased.  Any notice delivered by the applicable Administrative Agent (including on behalf of any Lender providing such notice to the applicable Administrative Agent) setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.10 shall be delivered to the applicable Borrower and shall be conclusive and binding absent manifest error.

Increased Costs

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and the result of any of the foregoing is to increase the cost to such Lender (or its applicable Lending Office) of making, Converting into, continuing, or maintaining any Eurocurrency Advances or accepting and purchasing any B/A Advance (or of maintaining its obligation to make or accept and purchase any such Advance), or to reduce any sum received or receivable by such Lender (or its applicable Lending Office) under this Agreement or its Notes with respect to any Eurocurrency Advances or any B/A Advances, then the applicable Borrower shall pay to such Lender within three Business Days after written demand made by such Lender such amount or amounts as such Lender determines in good faith to be necessary to compensate such Lender for such increased cost or reduction.

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Payments and Computations

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Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Legal Requirement, that any Lender acquiring a participation pursuant to the foregoing arrangements may, subject to Section 7.4, exercise against such Credit Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Credit Party in the amount of such participation.

Taxes

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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the US Borrower and the US Administrative Agent in writing of its legal inability to do so.

Replacement of Lenders

.  If (a) any Lender requests compensation under Section 2.11, or if any Borrower is required pursuant to Section 2.13 to make any additional payment to any Lender, (b) any Lender’s obligation to make or continue, or to Convert Base Rate Advances into, Eurocurrency Advances shall be suspended pursuant to Section 2.4(c)(v), Section 2.4(c)(vi) or Section 2.9, (c) any US Facility Lender is a Defaulting Lender, (d) any Canadian Facility Lender is a Defaulting Lender, or (e) any Lender is a Non-Consenting Lender (any such Lender described in any of the preceding clauses (a) – (e), being a “Subject Lender”), then (i) in the case of a Defaulting Lender, the US Administrative Agent may, upon notice to the Subject Lender and the US Borrower, require such Defaulting Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 9.7), all of its interests, rights and obligations under this Agreement and the related Credit Documents as a US Facility Lender and, if applicable, a Canadian Facility Lender to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment) and (ii) in the case of any Subject Lender, the US Borrower may, upon notice to the Subject Lender and the US Administrative Agent and at the US Borrower’s sole cost and expense, require such Subject Lender to assign and delegate (in accordance with and subject to the restrictions contained in, and consents required by, Section 9.7), all of its interests, rights and obligations under this Agreement and the related Credit Documents to an Eligible Assignee that shall assume such obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment), provided that, in any event:

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A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the US Borrower to require such assignment and delegation cease to apply.  Solely for purposes of effecting any assignment involving a Defaulting Lender under this Section 2.14 and to the extent permitted under applicable Legal Requirements, each Lender hereby designates and appoints the US Administrative Agent as true and lawful agent and attorney-in-fact, with full power and authority, for and on behalf of and in the name of such Lender to execute, acknowledge and deliver the Assignment and Acceptance required hereunder if such Lender is a Defaulting Lender and such Lender shall be bound thereby as fully and effectively as if such Lender had personally executed, acknowledged and delivered the same.  In lieu of the US Borrower or the US Administrative Agent replacing a Defaulting Lender as provided in this Section 2.14, the US Borrower may terminate such Defaulting Lender’s applicable Commitment as provided in Section 2.1(d).

Defaulting Lenders

.

Cash Collateral

.  At any time that there shall exist a Defaulting Lender which is a US Facility Lender, within one Business Day following the written request of the US Administrative Agent or the Issuing Lender or Swing Line Lender (with a copy to the US Administrative Agent) the Borrowers shall Cash Collateralize the Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.15(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than such Fronting Exposure.

Increase in Commitments

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The Borrowers shall provide prompt notice of such proposed Commitment Increase pursuant to this Section 2.17 to the US Administrative Agent and the Lenders.  This Section 2.17 shall not be construed to create any obligation on the US Administrative Agent or any of the Lenders to advance or to commit to advance

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any credit to any Borrower or to arrange for any other Person to advance or to commit to advance any credit to any Borrower.

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Bankers’ Acceptances

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Conditions Precedent to the Effectiveness of this Agreement

.  This Agreement shall become effective as of Closing Date upon the satisfaction of the following conditions precedent:

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Conditions Precedent to Each Borrowing and to Each Issuance, Extension or Renewal of a Letter of Credit

.  The obligation of each Lender to make an Advance on the occasion of each Borrowing (other than the conversion of an Advance to an Advance of a different Type), the obligation of the Issuing Lender to issue, increase, renew or extend a Letter of Credit, shall be subject to the following conditions precedent that on the date of such Borrowing or such issuance, increase, renewal or extension, as applicable:

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Each of the giving of the applicable Notice of Borrowing or Letter of Credit Application, the acceptance by the applicable Borrower of the proceeds of such Borrowing, the issuance, increase, renewal or extension of such Letter of Credit, and, if applicable, the reallocation of the Fronting Exposure, shall constitute a representation and warranty by each Borrower that on the date of such Borrowing, such issuance, increase, renewal or extension of such Letter of Credit or reallocation as applicable, the foregoing conditions, to the extent applicable, have been met.

Determinations under Sections 3.1 and 3.2.

 For purposes of determining compliance with the conditions specified in Section 3.1 and Section Section 3.2, each Lender (other than the Lender that is an Administrative Agent) shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the applicable Administrative Agent responsible for the transactions contemplated by the Credit Documents shall have received written notice from such Lender prior to the Borrowings hereunder specifying its objection thereto and such Lender shall not have made available to the applicable Administrative Agent such Lender’s ratable portion of such Borrowings. 

Each Credit Party jointly and severally represents and warrants as follows:

Organization.

 Each Restricted Entity is duly organized and validly existing and in good standing (to the extent such concept is applicable) under the laws of its jurisdiction of incorporation or formation.  Each Restricted Entity is authorized to do business and is in good standing in all jurisdictions in which such qualifications or authorizations are necessary except where the failure to be so qualified or authorized could not reasonably be expected to result in a Material Adverse Change.  As of the Amendment No. 1 Effective Date, each Restricted Entity’s type of organization and jurisdiction of incorporation or formation are set forth on Schedule 4.1.

Authorization.

 The execution, delivery, and performance by each Credit Party of each Credit Document to which such Credit Party is a party (a) are within such Credit Party’s corporate, limited liability company or partnership powers, as applicable, (b) have been duly authorized by all necessary corporate, limited liability company or partnership action, as applicable, (c) do not contravene any articles or certificate of incorporation or bylaws, partnership or limited liability company agreement, as applicable, binding on or affecting such Credit Party, other than those for which waivers or consents have been obtained, (d) do not contravene any law or any material contractual obligation binding on or affecting such Credit Party, (e) do not result in or require the creation or imposition of any Lien prohibited by this Agreement, and (f) do not require any authorization or approval or other action by, or any notice or

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filing with, any Governmental Authority other than (i) those that have been obtained and (ii) filings necessary to perfect Liens created pursuant to the Credit Documents.  At the time of the making of any Advance or the issuance, increase, renewal or extension of any Letter of Credit, the Borrowings thereunder and the use of the proceeds thereof are within the applicable Borrower’s corporate or limited liability company powers, have been duly authorized by all necessary action and do not contravene (x) the applicable Borrower’s bylaws or any other organizational document, (y) any Legal Requirement or (z) any material contractual restriction binding on or affecting the applicable Borrower, will not result in or require the creation or imposition of any Lien prohibited by this Agreement, and do not require any authorization or approval or other action by, or any notice or filing with, any Governmental Authority other than (i) those that have been obtained or provided and (ii) filings necessary to perfect Liens created pursuant to the Credit Documents.

Enforceability.

 The Credit Documents have each been duly executed and delivered by each Credit Party that is a party thereto and each Credit Document constitutes the legal, valid, and binding obligation of each Credit Party that is a party thereto enforceable against such Credit Party in accordance with its terms, except as limited by applicable Debtor Relief Laws at the time in effect affecting the rights of creditors generally and by general principles of equity whether applied by a court of law or equity.

Financial Condition.

 

Ownership and Liens; Real Property.

 Each Restricted Entity (a) has good and indefeasible title to, or a valid and subsisting leasehold interest in, all real property, and good title to all personal Property, material to the conduct of its business, and (b) none of the Property owned by any Restricted Entity is subject to any Lien except Permitted Liens.  As of the Amendment No. 1 Effective Date, and after giving effect to the Transactions, no Restricted Entity owns any real property other than those listed on Schedule 4.5 and all equipment and Inventory owned by any Credit Party are located at the fee owned or leased real property listed on Schedule 4.5 other than (i) office equipment and equipment located on jobsites, in transit or off location for servicing, repairs or modifications, (ii) Inventory held at Inventory processors and Inventory located on premises owned or operated by the customer that is to purchase such Inventory, (iii) equipment or Inventory located on premises subject to the Hawk Waiver Agreement and (iv) equipment of the Canadian Borrower held at 11111 Forbes Rd., Houston, TX 77075 pursuant to the Supplier Agreement the value of which, when aggregated with all other property of the Canadian Borrower held at such location, does not exceed $750,000.

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True and Complete Disclosure.

 As of the Amendment No. 1 Effective Date, all written factual information, other than forward looking information and projections and information of a general economic nature and general industry information about any Credit Party, prepared by or on behalf of each Credit Party and furnished to the US Administrative Agent or the Lenders for purposes of or in connection with this Agreement, any other Credit Document or any transaction contemplated hereby or thereby does not, when furnished and taken as a whole, contain any material misstatement of fact or omit to state any material fact necessary to make the statements therein not materially misleading.  All projections, estimates, budgets, and pro forma financial information furnished by each Credit Party (or on behalf of such Credit Party), were prepared in good faith based on assumptions believed to be reasonable at the time such projections, estimates, and pro forma financial information were furnished, it being recognized by the US Administrative Agent and each Lender that such projections, estimates, budgets, and pro forma financial information are not to be viewed as facts and are subject to significant uncertainties and contingencies many of which are beyond the control of the Parent or its Subsidiaries, that no assurances can be given that any particular financial projections will be realized, that actual results may vary materially from the projections furnished.  The information included in each Beneficial Ownership Certification is true and correct in all respects.

Litigation.

 There are no actions, suits, or proceedings pending or, to any Credit Party’s knowledge, threatened in writing against any Restricted Entity, at law, in equity, or by or before any Governmental Authority, which could reasonably be expected to result in a Material Adverse Change.  Additionally, except as disclosed in writing to the US Administrative Agent, there is no pending or, to the knowledge of any Responsible Officer of any Credit Party, any action or proceeding instituted or threatened in writing against any Restricted Entity which seeks to adjudicate any Restricted Entity as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any Debtor Relief Laws, or seeking the entry of an order for relief or the appointment of a receiver, trustee or other similar official for it or for any substantial part of its Property.

Compliance with Agreements.

 

Pension Plans.

 (a) Except for matters that could not reasonably be expected to result in a Material Adverse Change, all Plans and Multiemployer Plans are in compliance with all applicable provisions of ERISA, (b) no Termination Event has occurred with respect to any Plan that would result in an Event of Default under Section 7.1(i), and, except for matters that could not reasonably be expected to result in a Material Adverse Change, each Plan has complied with and been administered in accordance with applicable provisions of ERISA and the Code, (c) no unpaid minimum required contribution exists, and there has been no excise tax imposed under Section 4971 of the Code, in each case, except as could not reasonably be expected to result in liability exceeding $1,000,000, (d) the present value of all benefits vested under each Plan (based on the assumptions used to fund such Plan) did not, as of the last annual valuation date applicable thereto, exceed the value of the assets of such Plan allocable to such vested benefits in an amount that could reasonably be expected to result in a Material Adverse Change, (e) no Restricted Entity nor any member of the Controlled Group has had a complete or partial withdrawal from any Multiemployer Plan for which there is any unsatisfied withdrawal liability that could reasonably be expected to result in a Material Adverse Change or an Event of Default under Section 7.1(j), and (f) no Restricted Entity nor any member of the Controlled Group has incurred any liability as a result of a

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Multiemployer Plan being in reorganization or insolvent that could reasonably be expected to result in a Material Adverse Change.  Based upon GAAP existing as of the Amendment No. 1 Effective Date and current factual circumstances as of the Amendment No. 1 Effective Date, no Restricted Entity has any reason to believe that the annual cost during the term of this Agreement to any Restricted Entity for post-retirement benefits to be provided to the current and former employees of any Restricted Entity under Plans that are welfare benefit plans (as defined in Section 3(1) of ERISA) could, in the aggregate, reasonably be expected to cause a Material Adverse Change.

Environmental Condition.

 

Subsidiaries.

 As of the Amendment No. 1 Effective Date, the Parent has no Restricted Subsidiaries and no Unrestricted Subsidiaries other than those listed on Schedule 4.11.

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Investment Company Act.

 No Restricted Entity is an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940.

Taxes.

   

Permits, Licenses, etc.

 Each Restricted Entity possesses all permits, licenses, patents, patent rights or licenses, trademarks, trademark rights, trade names rights, and copyrights which are material to the conduct of its business.  Each Restricted Entity manages and operates its business in accordance with all applicable Legal Requirements except where the failure to so manage or operate could not reasonably be expected to result in a Material Adverse Change; provided that this Section 4.14 does not apply with respect to Environmental Permits.

Regulations T, U and X

.  No Restricted Entity is engaged principally or as one of its activities in the business of extending credit for the purpose of “purchasing” or “carrying” any “margin stock” (as each such term is defined or used, directly or indirectly, in Regulation U of the Federal Reserve Board).  No part of the proceeds of any of the Advances or Letters of Credit will be used for purchasing or carrying margin stock or for any purpose which violates the provisions of Regulation T, U or X.  Following the application of the proceeds of each Advance, not more than twenty-five percent (25%) of the value of the assets of the Credit Parties will be “margin stock”.

Insurance.

 Each Restricted Entity carries insurance (which may be carried by the Restricted Entities on a consolidated basis) with reputable insurers in respect of such of their respective Properties and liabilities, in such amounts and against such risks as is customarily maintained by other Persons of similar size engaged in similar businesses in accordance with Section 5.3.

Security Interest.

 Each Credit Party has authorized (as necessary) the filing of financing statements sufficient when filed to perfect the Lien created by the Security Documents to the extent such Lien can be perfected by filing financing statements.  When such financing statements are filed in the offices noted therein, the US Administrative Agent will have a valid and perfected security interest in all US Collateral that is capable of being perfected by filing financing statements.  When such PPSA filings are filed in the offices noted therein, the Canadian Administrative Agent will have a valid and

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perfected security interest in all Canadian Collateral that is capable of being perfected by filing PPSA filings.

Solvency.

 Before and after giving effect to each Advance, the Restricted Entities are Solvent.

OFAC; Anti-Terrorism.

 (a) No Credit Party, nor any of their respective Restricted Subsidiaries or, to the knowledge of any Credit Party, any director, officer, employee, agent, or affiliate of any Credit Party or any of their respective Subsidiaries is a Person that is, or is owned or controlled by Persons that are (i) the subject or target of any sanctions administered or enforced by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority or imposed pursuant to Canadian Anti-Terrorism and Economic Sanctions Laws (collectively, “Sanctions”) or (ii) located, organized or resident in a country or territory that is itself, or whose government is itself, the subject of Sanctions (any Person described in the preceding clauses (i) or (ii), being a “Sanctioned Person”).

(b)No Credit Party will, directly or, to its knowledge, indirectly, use the proceeds of the Advances or the proceeds of any Letter of Credit, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person (i) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is itself, or whose government is itself, the subject of Sanctions, except to the extent otherwise approved by OFAC, the U.S. Department of State and all other relevant Sanctions authorities or (ii) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Advances, whether as underwriter, advisor, investor, or otherwise).

Eligible Receivables.

   As to each Receivable that is included as an Eligible Receivable in a Borrowing Base Certificate submitted to the US Administrative Agent, such Receivable is (a) a bona fide existing payment obligation of the applicable Account Debtor created by the sale and delivery of Inventory or the rendition of services to such Account Debtor in the ordinary course of a Credit Party’s business, (b) owed to a Credit Party without any known defenses, disputes, offsets, counterclaims, or rights of return or cancellation (other than ordinary course of business offsets or trade allowances already netted against such Receivable in determining Eligible Receivable), and (c) not excluded as ineligible by virtue of one or more of the excluding criteria (other than any agent-discretionary criteria) set forth in the definition of Eligible Receivables.

Until the Termination Date:

Organization.

 Each Credit Party shall, and shall cause each of its respective Restricted Subsidiaries to, preserve and maintain its partnership, limited liability company or corporate existence, rights, franchises and privileges in the jurisdiction of its organization, and qualify and remain qualified as a foreign business entity in each jurisdiction in which qualification is necessary to conduct its business and operations or the ownership of its Properties except where failure to exist (except in the case of the Restricted Entities) or qualify could reasonably be expected to result in a Material Adverse Change; provided, however, that nothing herein contained shall prevent any transaction permitted by Section 6.6 or Section 6.7.

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Reporting.

   

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(i)Concurrently with the delivery of the Financial Statements referred to in Section 5.2(a) and Section 5.2(b) above (or if such Financial Statements are delivered by filing with the SEC as permitted in 5.2(t) below, then no later than the earlier of (x) 30 days after the filing of such Financial Statements and (y) the dates the Financial Statements are required to be delivered in Section 5.2(a) or (b) above, as applicable), the US Borrower shall provide to the US Administrative Agent a duly completed Compliance Certificate signed by the chief financial officer, vice president of finance, treasurer or controller (in any event, that is a Responsible Officer) of the US Borrower (it being understood that the only calculation set forth in the Compliance Certificate for the fiscal quarter ended June 30, 2020 will be the calculation of the Leverage Ratio as of June 30, 2020 for purpose of determining the Applicable Margin as set forth in Schedule I);

(ii)As soon as available and in any event within 15 days after the end of each calendar month (commencing with July 2020), the US Borrower shall provide to the US Administrative Agent, a certificate of chief executive officer, chief financial officer, vice president of finance, treasurer or controller (in any event, that is a Responsible Officer) of the US Borrower calculating (A) the Borrowing Base in the form of the Borrowing Base Certificate then in effect as of the end of such calendar month, and (B) Liquidity as of the date of such certificate after giving effect to the Borrowing Base calculated therein, and attaching thereto, among other things, a monthly accounts receivable aging and accounts payables aging report of the Credit Parties provided that, if an Increased Reporting Period is in effect, then on or prior to Wednesday of each week (commencing with the first such Wednesday to occur in an Increased Reporting Period), the US Borrower shall provide to the US Administrative Agent, a certificate of chief executive officer, chief financial officer, vice president of finance, treasurer or controller (in any event, that is a Responsible Officer) of the US Borrower calculating (x) the Borrowing Base in the form of the Borrowing Base Certificate then in effect as of the immediately preceding Friday, and (y) Liquidity as of the date of such certificate after giving effect to the Borrowing Base calculated therein, and attaching thereto, among other things, a weekly accounts receivable aging and accounts payables aging report of the Credit Parties;

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(iii)If an Increased Reporting Period is in effect, then concurrently with the Borrowing Base Certificate required under clause (ii) above, the US Borrower shall provide to the US Administrative Agent a certificate of chief executive officer, vice president of finance, chief financial officer, treasurer or controller (in any event, that is a Responsible Officer) of the US Borrower setting forth (A) an updated 13-Week Budget and (B) a variance report showing the percentage and dollar variance of actual receipts and disbursements for the immediately preceding week including a reconciliation of actual expenditures and disbursements with those set forth in the immediately preceding 13-Week Budget on a line by line basis showing any variance to the proposed corresponding line items of the 13-Week Budget for such week, in each case, in form and substance satisfactory to the US Administrative Agent; and

(iv)on each Available Cash Sweep Date, the US Borrower shall provide to the US Administrative Agent a certificate of chief executive officer, chief financial officer, vice president of finance, treasurer or controller (in any event, that is a Responsible Officer) of the US Borrower setting forth the calculation of the Available Cash Balance as of the Business Day immediately preceding such Available Cash Sweep Date and the payment, if any, due on such Available Cash Sweep Date pursuant to Section 2.5(c)(vi).

Each Credit Party hereby acknowledges that (a) the Administrative Agents and/or the Lead Arranger will make available to the Lenders and the Issuing Lender materials and/or information provided by or on behalf of any Credit Party hereunder (collectively, “Company Materials”) by posting the Company Materials on the Platform and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Parent or its securities) (each, a “Public Lender”).  Each Credit Party hereby agrees that it will use commercially reasonable efforts to identify that portion of the Company Materials that may be distributed to the Public Lenders and that (w) all such Company Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, means that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Company Materials “PUBLIC,” each Credit Party shall be deemed to have authorized the Administrative Agents, the Lead Arranger, the Issuing Lender and the Lenders to treat such Company Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to any Credit Party or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Company Materials constitute Information, they shall be treated as set forth in Section 9.8); (y) all Company Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agents and the Lead Arranger shall be entitled to treat any Company Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” 

Insurance.

 

Compliance with Laws.

   

Taxes.

 Each Credit Party shall, and shall cause each of its Restricted Subsidiaries to, pay and discharge all material Taxes, assessments, and other charges and claims related thereto imposed on any Restricted Entity prior to the date on which penalties attach other than any Tax, assessment, charge, or claim which is being contested in good faith and for which adequate reserves have been established in compliance with GAAP.

New Subsidiaries; Security.

   

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Deposit Accounts/Securities/Commodities Accounts.

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Records; Inspection.

 Each Credit Party shall, and shall cause each of its respective Restricted Subsidiaries to, maintain proper, complete and consistent books of record with respect to such Person’s operations, affairs, and financial condition.  From time to time upon reasonable prior notice, each Credit Party shall, and shall cause each of its respective Restricted Subsidiaries to, permit the Administrative Agents (or any Lender only if accompanying an Administrative Agent), at such reasonable times and intervals and to a reasonable extent and under the reasonable guidance of officers of or employees delegated by officers of the Restricted Entities, to, subject to any applicable confidentiality considerations, examine and copy the books and records of the Restricted Entities, to visit and inspect the Property of the Restricted Entities, and to discuss the business operations and Property of the Restricted Entities with the officers and directors thereof; provided that, unless an Event of Default has occurred and is continuing, the Restricted Entities shall bear the costs of only one such visit and inspection per fiscal year.

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Maintenance of Property.

 Each Credit Party shall, and shall cause each of its respective Restricted Subsidiaries to, maintain their owned, leased, or operated Property in good condition and repair, except for (a) normal wear and tear, (b) casualty which could not have been prevented with prudent operation and maintenance of such Property, and (c) condemnation; and shall abstain from, and cause each of its Restricted Entities to abstain from, knowingly or willfully permitting the commission of waste or other injury, destruction, or loss of natural resources, or the occurrence of pollution, contamination, or any other condition in, on or about the owned or operated Property involving the Environment that could reasonably be expected to result in Response activities and that could reasonably be expected to cause a Material Adverse Change.

Further Assurances.

 Each Credit Party shall cure, or cause to be cured, promptly any defects in the execution and delivery of the Credit Documents.  Each Credit Party hereby authorizes the Administrative Agents to file any financing statements to the extent permitted by applicable Legal Requirement in order to perfect or maintain the perfection of any security interest granted under any of the Credit Documents.  Each Credit Party at its expense will, and will cause each Restricted Subsidiary that is a Credit Party to, promptly execute and deliver to the Administrative Agents upon reasonable request by the Administrative Agents all such other documents, agreements and instruments to comply with or accomplish the covenants and agreements of any Credit Party or Restricted Subsidiary, as the case may be, in the Credit Documents (to the extent related to collateral), or to further evidence and more fully describe the collateral intended as security for the applicable Secured Obligations, or to correct any omissions in the Security Documents, or to state more fully the security obligations set out herein or in any of the Security Documents, or to perfect, protect or preserve any Liens created pursuant to any of the Security Documents, or to make any recordings, to file any notices or obtain any consents, all as may be necessary or appropriate in connection therewith or to enable the applicable Administrative Agent to exercise and enforce its rights and remedies with respect to any Collateral.

Designations with Respect to Subsidiaries; Unrestricted Subsidiaries.

 

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Use of Proceeds; Use of Letters of Credit.

 Each Credit Party shall, and shall cause each of its Restricted Subsidiaries to use the proceeds of the Advances, the Swing Line Advances or the Letters of Credit solely for (a) working capital purposes of any Restricted Entity or (b) other general corporate purposes of any Restricted Entity, including payment of original issue discounts and upfront fees to any Lender, Permitted Acquisitions, Permitted Investments, Capital Expenditures that are permitted hereunder and Restricted Payments that are permitted hereunder.  No Credit Party shall, and shall not permit any of its respective Subsidiaries to, directly or, to its knowledge, indirectly, use any part of the proceeds of Advances or Letters of Credit or lend, contribute or otherwise make available such Advance or Letter of Credit or the proceeds of any Advance or Letter of Credit to any Person, (i) for any purpose which violates, or is inconsistent with, Regulations T, U, or X, (ii) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is itself, or whose government is itself, the subject of Sanctions, except to the extent licensed or otherwise approved by OFAC, the U.S. Department of State and all other relevant Sanctions authorities or (iii) in any other manner that would result in a

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violation of Sanctions by any Person (including any Person participating in the Advances, whether as underwriter, advisor, investor, or otherwise).

OFAC; Anti-Terrorism.

The Parent will maintain in effect policies and procedures designed to facilitate compliance by the Parent, its Subsidiaries and their respective directors, officers and employees with Anti-Corruption Laws and applicable Sanctions.

Appraisals; Field Exams.

   

(c)Event of Default; Beneficiary.  If an Event of Default has occurred and is continuing, each Administrative Agent may perform any additional collateral audits, appraisals and field exams, and all such collateral audits, appraisals and field exams shall be performed at the applicable Borrowers’ sole cost and expense.  Notwithstanding anything herein to the contrary, (i) no Credit Party nor any Affiliate thereof nor any of the foregoing’s respective equity holders are intended to, and no such Person shall be, third party beneficiaries of any audits, appraisals, field exams or collateral audit conducted by any Secured Party or any other Person at the direction of any Secured Party and (ii) no Secured Party is obligated to share any such material or information with any Person other than the directly intended and express beneficiary thereof.

(d)Non-Disclosure.  Notwithstanding anything to the contrary herein, neither the Borrowers nor any Restricted Subsidiary shall be required to disclose, permit the inspection, examination or making of copies of or taking abstracts from, or discuss any document, information, or other matter (i) that constitutes non-financial trade secrets or non-financial proprietary information of the Borrowers and their

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Subsidiaries and/or any of its customers and/or suppliers, (ii) in respect of which disclosure to the Administrative Agents or any Lender (or any of their respective representatives or contractors) is prohibited by applicable Legal Requirements to which any of the Borrower or Restricted Subsidiary is subject, (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product or (iv) in violation of any confidentiality obligation owing by the Parent, any Borrower or any Restricted Subsidiary to any third party (provided such confidentiality obligations or attorney-client or similar privilege were not entered into in contemplation of the requirements of this Section 5.15).

Post-Closing.

   

Until the Termination Date:

Debt.

 No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, create, assume, incur, suffer to exist, or in any manner become liable, directly, indirectly, or contingently in respect of, any Debt other than the following (collectively, the “Permitted Debt”):

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For the avoidance of doubt, each Debt permitted above includes any extension, refinancing, replacement, renewal or guarantee of such Debt so long as any such extension, refinancing, replacement, renewal and guarantee complies with the requirements of the Debt being extended, refinanced, replaced, renewed or guaranteed; provided that, (A) in the case of clauses (k), (m), and (n), the covenants, events of default, subordination (if applicable) and other provisions thereof (including any guarantees thereof), but excluding pricing, shall be, in the aggregate, not materially less favorable to the Lenders than those contained in the Debt being renewed or refinanced, and (B) nothing in this sentence is intended to, nor shall anything in this sentence be construed as, an increase in any dollar limit already provided in Section 6.1 above nor an amendment of any specific requirement set forth in Section 6.1 above, including such Debt owed or owing to Non-Credit Parties or Credit Parties, except that, for the avoidance of doubt, the amount of a guarantee shall not be counted in addition to the amount of Debt being guaranteed.

Liens.

 No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, create, assume, incur, or suffer to exist any Lien on the Property of any Restricted Entity, whether now

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owned or hereafter acquired, or assign any right to receive any income, other than the following (collectively, the “Permitted Liens”):

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Investments.

 No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, make or hold any direct or indirect Investment, other than the following (collectively, the “Permitted Investments”):

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Acquisitions

.  No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, make any Acquisition in a single transaction or related series of transactions other than:

provided, that, in the case of each of (a) and (d) above, (i) no Event of Default exists both before and after giving effect to such Acquisition, (ii) the Parent is in pro forma compliance with the covenants set forth in Section 6.16 after giving effect to such Acquisition and the US Borrower has delivered a pro forma Compliance Certificate reflecting such compliance, (iii) the pro forma Leverage Ratio as of the fiscal quarter ended immediately prior to the completion of such Acquisition for which Financial Statements are available does not exceed 2.00 to 1.00 and the US Borrower has delivered a pro forma Compliance Certificate reflecting such compliance, (iv) both before and immediately after giving effect to such Acquisition, Liquidity is equal to or greater than 15% of the aggregate Commitments, and (v) the EBITDA of the Target for the four-fiscal quarter period ended immediately prior to the completion of such Acquisition is greater than $0.

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Agreements Restricting Liens.

 No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, create, incur, assume or permit to exist any contract, agreement or understanding which in any way prohibits or restricts the granting, conveying, creation or imposition of any Lien on any of its Property, whether now owned or hereafter acquired, to secure the Secured Obligations or restricts any Restricted Subsidiary from paying Restricted Payments to the Parent or any Borrower, or which requires the consent of other Persons in connection therewith other than:

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Corporate Actions; Organizational Documents; Fiscal Year.

   

Disposition of Assets.

 No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, make a Disposition other than:

(ii)  [reserved],

(iii) Disposition of any Property by any Non-Credit Party to any other Non-Credit Party,

(iv) [reserved], and

(v) Disposition of any Property between any Credit Party and any Non-Credit Party to the extent such Disposition (A) is otherwise permitted under this Section 6.7 or as an Investment under Section 6.3(d), and (B) in the case of Disposition of cash or Liquid Investments, such Disposition is otherwise permitted as an Investment under Section 6.3;

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Restricted Payments

.  No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, make any Restricted Payments except that:

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Affiliate Transactions.

 No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, enter into or permit to exist any transaction or series of transactions (including, but not limited to, the purchase, sale, lease or exchange of Property, the making of any Investment, the assumption of any obligation or the rendering of any service) with any of their Affiliates which are not Restricted Entities (or if a Credit Party is involved, with any of their Affiliates which are not Credit Parties) unless such transaction or series of transactions is on terms no less favorable to such Restricted Entity (or if applicable, such Credit Party) than those that could be obtained in a comparable arm’s length transaction with a Person that is not such an Affiliate; provided however, that the restrictions in this Section 6.9 shall not apply to: 

Line of Business.

 No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, make any material change to the character of the Restricted Entities’ collective business as conducted on the date of this Agreement, or engage in any type of business not reasonably related to the Restricted Entities’ collective business as presently and normally conducted.

Sale and Leaseback Transactions.

 No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, sell or transfer to a Person any Property, whether now owned or hereafter acquired, if at the time or thereafter the Restricted Entity shall lease, as lessee, such Property or any part thereof which such Restricted Entity intends to use for substantially the same purpose as the Property sold or transferred; provided that, any Restricted Entity may effect such transactions so long as such transactions do not exceed $250,000 in the aggregate at any time outstanding; provided, further that to the extent constituting a sale and leaseback transaction, any Restricted Entity may enter into Capital Leases and purchase money transactions as permitted pursuant to Section 6.1 or Section Section 6.2 without regard to the foregoing dollar limitation.

Operating Leases.

 No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, enter into any lease that constitutes an operating lease under GAAP other than (a) operating leases between or among Credit Parties, (b) operating leases between or among Non-Credit Parties, (c) operating leases existing on the Closing Date and listed on Schedule 6.12 attached hereto and any extension,

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renewal or replacement thereof, and (d) other operating leases with annual rental and other payment obligations in the aggregate not to exceed $3,500,000 for such fiscal year.

Limitation on Hedging.

 No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, (a) purchase, assume, or hold a speculative position in any commodities market or futures market or enter into any Hedging Arrangement for speculative purposes; or (b) be party to or otherwise enter into any Hedging Arrangement which (i) is entered into for reasons other than as a part of its normal business operations as a risk management strategy and/or hedge against changes resulting from market conditions (including currency exchange, interest rates and commodities) related to the Restricted Entities’ operations, or (ii) obligates any Restricted Entity to any margin call requirements or otherwise requires any Restricted Entity to put up money, assets or other security (other than (w) Liens granted under the Security Documents to secure all or a portion of the Secured Obligations, (x) Letters of Credit issued hereunder, (y) unsecured letters of credit, and (z) cash collateral to the extent required under applicable Legal Requirement).

Landlord Agreements.

 No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries that is, or in required to be, a Credit Party to: 

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Reserved.

 

Financial Covenants.

   

Capital Expenditures.

 No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, incur Capital Expenditures unless such Capital Expenditures would not cause the sum of the total Capital Expenditures (excluding (a) Capital Expenditures funded solely with Equity Issuance Proceeds resulting from issuance of common Equity Interests of the Parent, (b) Permitted Acquisitions to the extent constituting Capital Expenditures, (c) Capital Expenditures to the extent financed with insurance or condemnation proceeds, and (d) in the event of any asset purchased simultaneously with the trade-in of an existing asset for fair market value, the gross amount of the credit granted by the seller for the asset being traded in at such time) of the Restricted Entities in any fiscal year to exceed the Capital Expenditure Amount for such fiscal year.    

Prepayment of Certain Debt and Other Obligations.

 No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of the subordination terms of, any Debt (including, but not limited to, Subordinated Debt), except (a) the prepayment of the Obligations in accordance with the terms of this Agreement, (b) regularly scheduled or required repayments or redemptions of Permitted Debt (other than any payments of Subordinated Debt in violation of the applicable subordination terms and Debt permitted under Section 6.1(p)) and refinancings and refundings of such Permitted Debt so long as such refinancings and refundings would otherwise comply with Section 6.1, (c) so long as no Event of Default exists or would result therefrom, other prepayments of Permitted Debt not described in the immediately preceding clauses (a) and (b), but specifically excluding any prepayments, redemptions, purchases, defeasance, or other satisfaction of Subordinated Debt and Debt permitted under Section 6.1(p), and (d) so long as no Event of Default exists or would result therefrom, the prepayment, redemption, purchase, defeasance or other satisfaction of Permitted Debt between and among Credit Parties set forth on Schedule 6.1.  No Credit Party shall, nor shall it permit any of its Restricted Subsidiaries to, make any payments of principal or interest with respect to Subordinated Debt, except to the extent permitted under the applicable subordination terms.

Events of Default.

 The occurrence of any of the following events shall constitute an “Event of Default” under this Agreement and any other Credit Document:

Optional Acceleration of Maturity.

 If any Event of Default shall have occurred and be continuing, then, and in any such event,

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Automatic Acceleration of Maturity.

 If any Event of Default pursuant to Section 7.1(g) shall occur,

Set-off.

 If an Event of Default shall have occurred and be continuing, each Administrative Agent, the Swing Line Lender, each Lender, the Issuing Lender, and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Administrative Agent, the Swing Line Lender, such Lender, the Issuing Lender or any such Affiliate to or for the credit or the account of any Borrower or any other Credit Party against any and all of the obligations of any Borrower or such Credit Party now or hereafter existing under this Agreement or any

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other Credit Document to such Administrative Agent, the Swing Line Lender, such Lender, the Issuing Lender or such Affiliate, irrespective of whether or not such Administrative Agent, the Swing Line Lender, such Lender, the Issuing Lender or such Affiliate shall have made any demand under this Agreement or any other Credit Document and although such obligations of such Borrower or such Credit Party may be contingent or unmatured or are owed to a branch or office of such Administrative Agent, the Swing Line Lender, such Lender, such Affiliate or the Issuing Lender different from the branch or office holding such deposit or obligated on such indebtedness.  The rights of each Administrative Agent, the Swing Line Lender, each Lender, the Issuing Lender and their respective Affiliates under this Section 7.4 are in addition to other rights and remedies (including other rights of setoff) that such Administrative Agent, the Swing Line Lender, such Lender, the Issuing Lender or their respective Affiliates may have.  The Swing Line Lender, each Lender and the Issuing Lender agrees to notify the US Borrower and the US Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.

Remedies Cumulative, No Waiver.

 No right, power, or remedy conferred to any Lender in this Agreement or the Credit Documents, or now or hereafter existing at law, in equity, by statute, or otherwise shall be exclusive, and each such right, power, or remedy shall to the full extent permitted by law be cumulative and in addition to every other such right, power or remedy.  No course of dealing and no delay in exercising any right, power, or remedy conferred to any Lender in this Agreement and the Credit Documents or now or hereafter existing at law, in equity, by statute, or otherwise shall operate as a waiver of or otherwise prejudice any such right, power, or remedy.  No notice to or demand upon any Borrower or any other Credit Party shall entitle any Borrower or any other Credit Party to similar notices or demands in the future.

Application of Payments.

   

First, to payment of that portion of the Secured Obligations constituting fees, indemnities, expenses and other amounts, including attorney fees, payable to the Administrative Agents in their capacity as such, the Issuing Lender in its capacity as such and the Swing Line Lender in its capacity as such, ratably among the Administrative Agents, the Issuing Lender and Swing Line Lender in proportion to the respective amounts described in this clause First payable to them;

Second, to payment of that portion of the Secured Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders under the Credit Documents, including attorney fees, ratably among the Lenders in proportion to the Dollar Equivalent of the respective amounts described in this clause Second payable to them;

Third, to payment of that portion of the Secured Obligations constituting accrued and unpaid interest on the Advances and Letter of Credit Obligations, ratably among the Lenders in proportion to the Dollar Equivalent of the respective amounts described in this clause Third payable to them;

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Fourth, to payment of that portion of the Secured Obligations constituting unpaid principal of the Advances, Letter of Credit Obligations and payment obligations then owing under Hedging Arrangements and Banking Services Obligations, ratably among the Lenders, the Issuing Lender, the Swap Counterparties and the Banking Services Providers in proportion to the Dollar Equivalent of the respective amounts described in this clause Fourth payable to them;

Fifth, to the US Administrative Agent for the account of the Issuing Lender, to Cash Collateralize any Letter of Credit Obligations then outstanding; and

Last, the balance, if any, after all of the Secured Obligations have been indefeasibly paid in full, to the Borrowers or as otherwise required by applicable Legal Requirements.

Notwithstanding the foregoing, Secured Obligations arising under Hedging Arrangements and Banking Services Obligations shall be excluded from the application described above if the US Administrative Agent has not received written notice thereof, together with such supporting documentation as the US Administrative Agent may request, from the applicable Swap Counterparty and Banking Services Provider, as the case may be.  Each Swap Counterparty and Banking Services Provider not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the US Administrative Agent pursuant to the terms of ARTICLE 8 for itself and its Affiliates as if a “Lender” party hereto.

Equity Right to Cure.

   

Currency Conversion After Maturity

.  At any time following the occurrence and during the continuance of an Event of Default and the acceleration of the Obligations owed to the Lenders hereunder, the Lenders shall be entitled to convert, with two (2) Business Days’ prior notice to the applicable Borrower, any and all or any part of the then unpaid and outstanding Advances denominated in a Foreign Currency into Advances denominated in Dollars.  Any such conversion shall be calculated so that the principal amount of the resulting Advances shall be the Dollar Equivalent of the principal amount of the Advance being converted on the date of conversion.  Any accrued and unpaid interest denominated in such Foreign Currency at the time of any such conversion shall be similarly converted to Dollars, and such converted Advances and accrued and unpaid interest thereon shall thereafter bear interest in accordance with the terms hereof.

Appointment, Powers, and Immunities.

   

No Administrative Agent shall be liable to the other Lending Parties for any action taken or not taken by it (i) with the consent or at the request of the US Majority Lenders or Canadian Majority Lenders, as applicable (or such other number or percentage of the Lenders as shall be necessary, or as the applicable Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections Section 7.2 and Section 7.3) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable judgment.  Each Administrative Agent shall be deemed not to have knowledge of or notice of the occurrence of any Default unless and until written notice describing such Default is given to such Administrative Agent by the US Borrower, a Lender or the Issuing Lender and specifying such notice as a “Notice of Default”.  In the event that an Administrative Agent receives such a notice of the occurrence of a Default, such Administrative Agent shall (subject to Section 9.3) take such action with respect to such Default or Event of Default as shall reasonably be directed by the Majority Lenders; provided that, unless and until such Administrative Agent shall have received such directions, such Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default as it shall deem advisable in the best interest of the Secured Parties.

No Administrative Agent shall be responsible for, or have any duty to ascertain or inquire into, (i) any recital, statement, warranty or representation (whether written or oral) made in or in connection with this Agreement or any other Credit Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the value, validity, enforceability, effectiveness, enforceability, sufficiency or genuineness of this Agreement, any other Credit Document or any other agreement, instrument or document, (v) the inspection of, or to inspect, the Property (including the books and records) of any Restricted Entity or any of their respective Subsidiaries or Affiliates, (vi) the satisfaction of any condition set forth in ARTICLE 3 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Administrative Agent, or (vii) any litigation or collection proceedings (or to initiate or conduct any such litigation or proceedings) under any Credit Document unless requested by the Majority Lenders in writing and it receives indemnification satisfactory to it from the Lenders.

Reliance by Administrative Agent.

 Each Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document, writing or other communication (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.  Each Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Advance, Conversion of any Advance or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the Issuing Lender, each Administrative Agent may presume that such condition is satisfactory to such Lender or the Issuing Lender unless such Administrative Agent shall have received notice to the contrary from such Lender or the Issuing Lender prior to the making of such Advance, Conversion of such Advance or the issuance of such Letter of Credit.  Each Administrative Agent may consult with legal counsel (who may be counsel for any Borrower),

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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.

Delegation of Duties.

 Each Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by such Administrative Agent.  Each Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties.  The exculpatory provisions of this ARTICLE 8 shall apply to any such sub-agent and to the Related Parties of each Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.

Indemnification.

 

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Non-Reliance on Administrative Agent and Other Lenders.

 Each Lender and the Issuing Lender agrees that it has, independently and without reliance on any Administrative Agent (which term as used in this Section 8.5 shall include its Related Parties) or any other Lender or any other Issuing Lender, and based on such documents and information as it has deemed appropriate, made its own credit analysis of the Borrowers, the other Credit Parties and the Subsidiaries and decision to enter into this Agreement and that it will, independently and without reliance upon any Administrative Agent or any other Lender or any other Issuing Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own analysis and decisions in taking or not taking action under the Credit Documents.  Except for notices, reports, and other documents and information expressly required to be furnished to the Lenders or the Issuing Lender by the Administrative Agents hereunder, no Administrative Agent shall have any duty or responsibility to provide any Lender or the Issuing Lender with any credit or other information concerning the affairs, financial condition, or business of any Credit Party or any of its Subsidiaries or Affiliates that may come into the possession of such Administrative Agent or any of its Affiliates.

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Resignation of Administrative Agent, Issuing Lender or Swing Line Lender.

   

Collateral Matters.

   

No Other Duties, Etc.

 Anything herein to the contrary notwithstanding, none of the joint lead arrangers, bookrunner or any other agent named on the cover page to this Agreement (other than the Administrative Agents) shall have any powers, duties or responsibilities under this Agreement or any of the other Credit Documents, except in its capacity, as applicable, as the US Administrative Agent, the Canadian Administrative Agent, a Lender, Swing Line Lender or the Issuing Lender.

Secured Hedging Agreements and Secured Cash Management Agreements.

 No Banking Services Provider or Swap Counterparty that obtains the benefits of Section 7.6 or any Collateral by virtue of the provisions hereof or of any Security Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Credit Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender, the Issuing Lender, Swing Line Lender or Administrative Agent, and, in such case, only to the extent expressly provided in the Credit Documents.  Notwithstanding any other provision of this Agreement to the contrary, no Administrative Agent shall be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Banking Services Obligations and Hedging Arrangements unless such Administrative Agent has received written notice of such Banking Services Obligations and Hedging Arrangements, together with such supporting documentation as such Administrative Agent may request, from the applicable Banking Services Provider or Swap Counterparty, as the case may be.

Credit Bidding.

   

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Certain ERISA Matters.

   

Costs and Expenses.

   

Indemnification; Waiver of Damages.

 

Waivers and Amendments.

 No amendment or waiver of any provision of this Agreement, the Notes, or any other Credit Document (other than the Fee Letter or any AutoBorrow Agreement), nor consent to any departure by any Borrower or any Guarantor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Majority Lenders and the Borrowers, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that:

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For the avoidance of doubt, no Lender or any Affiliate of a Lender shall have any voting rights under this Agreement or any Credit Document as a result of the existence of obligations owed to it under Hedging Arrangements or Banking Services Obligations.

Notwithstanding anything to the contrary contained in this Section 9.3, (a) the Borrowers and the US Administrative Agent may (but are not obligated to), without the input or consent of any other Lender, effect amendments to correct any jointly identified obvious error or any error or omission of a technical nature,

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in each case, in any provision of the Credit Documents and (b) guarantees, collateral security documents and related documents executed by the Parent or any of its Subsidiaries in connection with this Agreement may be in a form reasonably determined by the US Administrative Agent or the Canadian Administrative Agent, as applicable, and the Borrowers and the US Administrative Agent or the Canadian Administrative Agent, as applicable, may (but are not obligated to) amend, supplement or waive any provision thereof without the consent of any Lender if such amendment, supplement or waiver is delivered in order to (x) comply with local law or advice of local counsel, (y) cure ambiguities, omissions, mistakes or defects as determined by the US Administrative Agent or the Canadian Administrative Agent, as applicable, and the Borrowers or (z) cause such guarantee, collateral security document or other document to be not inconsistent or not in conflict with this Agreement and the other Credit Documents as determined by the US Administrative Agent or the Canadian Administrative Agent, as applicable, and the Borrowers; provided that, the inclusion in such other Credit Document of terms and provisions, rights or remedies in favor of a Lending Party and not addressed in this Agreement shall not be deemed to be in conflict or inconsistent with this Agreement.

Severability.

 In case one or more provisions of this Agreement or the other Credit Documents shall be invalid, illegal or unenforceable in any respect under any applicable Legal Requirement, the validity, legality, and enforceability of the remaining provisions contained herein or therein shall not be affected or impaired thereby.

Survival of Representations and Obligations.

 All representations and warranties contained in this Agreement or made in writing by or on behalf of the Credit Parties in connection herewith shall survive the execution and delivery of this Agreement and the other Credit Documents, the making of the Advances or the issuance of any Letters of Credit and any investigation made by or on behalf of the Lenders, none of which investigations shall diminish any Lender’s right to rely on such representations and warranties; provided that, all such representations and warranties shall terminate on the Termination Date.  All obligations of any Borrower or any other Credit Party provided for in Sections 2.8(e), Section 2.10, Section 2.11, Section 2.13, Section 9.1 and Section 9.2 and all of the obligations of the Lenders in Sections Section 8.5, Section 9.2(a), (b), and (e), Section 9.8 or Section 9.12 shall survive any termination of this Agreement and repayment in full of the Obligations; provided that, the Lenders obligations under Section 9.8 shall automatically terminate two years following the date on which this Agreement has been terminated.

Binding Effect.

 Subject to the terms of Section 3.1, this Agreement shall become effective when it shall have been executed by the Borrowers and the Administrative Agents, and when the US Administrative Agent shall have, as to each Lender, either received a counterpart hereof executed by such Lender or been notified by such Lender that such Lender has executed it and thereafter shall be binding upon and inure to the benefit of the Borrowers, the Administrative Agents, and each Lender and their respective permitted successors and assigns, except that neither Borrower nor any other Credit Party shall have the right to assign its rights or delegate its duties under this Agreement or any other Credit Document or any interest in this Agreement or any other Credit Document without the prior written consent of each Lender, except as otherwise permitted by Section 6.6.

Lender Assignments and Participations.

 

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Subject to acceptance and recording thereof by the applicable Administrative Agent pursuant to paragraph (c) of this Section 9.7, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of and subject to its obligations under Sections Section 2.10, Section 2.11, Section 2.13, Section 9.1, Section 9.2, Section 9.8 and Section 9.12 with respect to facts and circumstances occurring prior to the effective date of such assignment and shall continue to be subject to its obligations under Section 2.13(e)(e) and Section 2.13(i) for events and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender; and provided further that, the assigning Lender’s obligations under Section 9.8 shall automatically terminate two years following the date of such assignment.  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (d) of this Section 9.7.

Each Lender that sells a participation shall, acting solely for this purpose as the non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Advances or other obligations under the Credit Documents (the “Participant Register”); provided that no US Facility Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive, absent manifest error, and such US Facility Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, no Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.  Each Borrower hereby agrees that each Lender acting as its agent solely for the purpose set forth above in this clause (d), shall not subject such Lender to any fiduciary or other implied duties, all of which are hereby waived by each Borrower.

Confidentiality.

 Each Lending Party agrees to maintain the confidentiality of the Specified Information (as defined below) received by such Lending Party; provided that nothing herein shall prevent any Lending Party from disclosing any such information (a) subject to the final proviso of this paragraph, to any other Lending Party or any Affiliate of any Lending Party (other than any Disqualified Institution), or any officer, director, employee, agent, or advisor of any Lending Party or Affiliate of any Lending Party (other than any Disqualified Institution) for purposes of administering, negotiating, considering, processing, implementing, syndicating, assigning, or evaluating the credit facilities provided herein and the transactions contemplated hereby (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Specified Information and instructed to keep such Specified Information confidential and such Lending Party shall be responsible for such Affiliate’s compliance with this Section 9.8), (b) to the extent required by any Legal Requirement (in which case such Lending Party shall, except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority, promptly notify the US Borrower, in advance, to the extent practicably and lawfully permitted to do so), (c) to the extent required by order of any court or administrative agency (in which case such Lending Party shall, except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority, promptly notify the US Borrower, in advance, to the extent practicably and lawfully permitted to do so), (d) to the extent required to be disclosed by reason of any request or demand of any regulatory agency or authority having jurisdiction over such Lending Party (including any self-regulatory authority, such as the National Association of Insurance Commissioners) (in which case such Lending Party shall, except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority, promptly notify the US Borrower, in advance, to the extent practicably and lawfully

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permitted to do so), (e) to the extent necessary in connection with the exercise of any right or remedy under this Agreement or any other Credit Document, (f) in connection with any litigation relating to this Agreement or any other Credit Document to which such Lending Party is a party, including for purposes of establishing a “due diligence” defense, (g) to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the Facilities and (h) subject to the final proviso of this paragraph, to any actual or proposed Participant, Swap Counterparty or permitted assignee (which permitted assignee does not include any Disqualified Institution unless otherwise consented to by the US Borrower) subject to the acknowledgment and acceptance by such proposed Participant, Swap Counterparty or assignee that such information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to the US Borrower and the assigning Lender, including as agreed in any confidential information memorandum or other marketing materials) in accordance with customary market standards for dissemination of such type of information.  “Specified Information” means all information concerning the Parent or any of its Subsidiaries that has been made available to the Lending Parties by, or on behalf of, the Parent or any of its Subsidiaries (excluding (i) any such information that is available to such Lending Party on a non-confidential basis and not from a source which, to such Lending Party’s actual knowledge, has violated a duty of confidentiality to the Parent or any of its Subsidiaries as to such information, and (ii) any information that is or becomes generally available to the public other than as a result of disclosure by any other Lending Party or any of its Affiliates or Related Parties prohibited by this Agreement).  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, nothing in this Agreement shall (i) restrict any Lending Party from providing information to any banking or other regulatory or governmental authorities having jurisdiction over such Lending Party, including the Federal Reserve Board and its supervisory staff; (ii) require or permit any Lending Party to disclose to any Credit Party or any Affiliate thereof that any information will be or was provided to the Federal Reserve Board or any of its supervisory staff; or (iii) require or permit any Lending Party to inform any Credit Party or any Affiliate thereof of a current or upcoming Federal Reserve Board examination or any nonpublic Federal Reserve Board supervisory initiative or action.

Notices, Etc.

   

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Usury Not Intended.

 It is the intent of each Credit Party and each Lender in the execution and performance of this Agreement and the other Credit Documents to contract in strict compliance with applicable usury laws, including conflicts of law concepts, governing the Advances of each Lender including such applicable laws of the State of New York, if any, and the United States of America from time to time in effect.  In furtherance thereof, the Lenders and the Credit Parties stipulate and agree that none of the terms and provisions contained in this Agreement or the other Credit Documents

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shall ever be construed to create a contract to pay, as consideration for the use, forbearance or detention of money, interest at a rate in excess of the Maximum Rate and that for purposes of this Agreement “interest” shall include the aggregate of all charges which constitute interest under such laws that are contracted for, charged or received under this Agreement; and in the event that, notwithstanding the foregoing, under any circumstances the aggregate amounts taken, reserved, charged, received or paid on the Advances, include amounts which by applicable law are deemed interest which would exceed the Maximum Rate, then such excess shall be deemed to be a mistake and each Lender receiving same shall credit the same on the principal of its Obligations (or if such Obligations shall have been paid in full, refund said excess to the US Borrower).  In the event that the maturity of the Obligations are accelerated by reason of any election of an Administrative Agent (including at the instruction of the Majority Lenders) resulting from any Event of Default under this Agreement or otherwise, or in the event of any required or permitted prepayment, then such consideration that constitutes interest may never include more than the Maximum Rate, and excess interest, if any, provided for in this Agreement or otherwise shall be canceled automatically as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited on the applicable Obligations (or, if the applicable Obligations shall have been paid in full, refunded to the US Borrower of such interest).  In determining whether or not the interest paid or payable under any specific contingencies exceeds the Maximum Rate, the Credit Parties and the Lenders shall to the maximum extent permitted under applicable law amortize, prorate, allocate and spread in equal parts during the period of the full stated term of the Obligations all amounts considered to be interest under applicable law at any time contracted for, charged, received or reserved in connection with the Obligations.  The provisions of this Section 9.10 shall control over all other provisions of this Agreement or the other Credit Documents which may be in apparent conflict herewith.  Notwithstanding any other provision of this Agreement or any Credit Document, no Credit Party existing under the laws of Canada or any province or territory of Canada shall be obligated to make any payments of interest or other amounts payable to the Lending Parties in excess of an amount or rate which would be prohibited by law or would result in the receipt by the Lending Parties of interest at a criminal rate (as such terms are construed under the Criminal Code (Canada).

Usury Recapture.

 In the event the rate of interest chargeable under this Agreement at any time is greater than the Maximum Rate, the unpaid principal amount of the Advances shall bear interest at the Maximum Rate until the total amount of interest paid or accrued on the Advances equals the amount of interest which would have been paid or accrued on the Advances if the stated rates of interest set forth in this Agreement had at all times been in effect. In the event, upon payment in full of the Advances, the total amount of interest paid or accrued under the terms of this Agreement and the Advances is less than the total amount of interest which would have been paid or accrued if the rates of interest set forth in this Agreement had, at all times, been in effect, then the applicable Borrower shall, to the extent permitted by applicable law, pay the applicable Administrative Agent for the account of the Lenders an amount equal to the difference between (i) the lesser of (A) the amount of interest which would have been charged on its Advances if the Maximum Rate had, at all times, been in effect and (B) the amount of interest which would have accrued on its Advances if the rates of interest set forth in this Agreement had at all times been in effect and (ii) the amount of interest actually paid under this Agreement on its Advances.  In the event the Lenders ever receive, collect or apply as interest any sum in excess of the Maximum Rate, such excess amount shall, to the extent permitted by law, be applied to the reduction of the principal balance of the Advances, and if no such principal is then outstanding, such excess or part thereof remaining shall be paid to the applicable Borrower.

Payments Set Aside.

 To the extent that any payment by or on behalf of the applicable Borrower is made to the applicable Administrative Agent, Issuing Lender or any Lender, or the applicable Administrative Agent, Issuing Lender or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the

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applicable Administrative Agent, Issuing Lender or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any bankruptcy or other laws for the relief of debtors or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred (except that interest and fees shall not accrue on such amount during the period between the time of payment and the revival of such payment obligation), and (b) each Lender and the Issuing Lender severally agrees to pay to the applicable Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the applicable Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Overnight Rate in effect from time to time, in the applicable currency of such recovery or payment.  The obligations of the Lenders and the Issuing Lender under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

Governing Law

.  This Agreement and the other Credit Documents (unless otherwise expressly provided therein) shall be deemed a contract under, and shall be governed by, and construed and enforced in accordance with, the laws of the State of New York applicable to contracts made and to be performed entirely within such state, without regard to conflicts of laws principles (other than Section 5-1401 and Section 5-1402 of the General Obligations Law of the State of New York).  Each Letter of Credit shall be governed by either (i) the Uniform Customs and Practice for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No. 600, or (ii) the International Standby Practices (ISP98), International Chamber of Commerce Publication No. 590, in either case, including any subsequent revisions thereof approved by a Congress of the International Chamber of Commerce. 

Submission to Jurisdiction; Waiver of Venue; Appointment of Agent for Service of Process.

 Subject to the last sentence of this Section 9.14, the parties hereto hereby agree that any suit or proceeding arising in respect of this Agreement, or any of the matters contemplated hereby or thereby will be tried exclusively in the U.S. District Court for the Southern District of New York or, if such court does not have subject matter jurisdiction, in any state court located in the Borough of Manhattan, and the parties hereto hereby agree to submit to the exclusive jurisdiction of, and venue in, such court.  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.  The parties hereto hereby agree that service of any process, summons, notice or document by registered mail addressed to the applicable parties at the address specified in Section 9.9, and as to the Process Agent (referred to below), as provided below, will be effective service of process against such party for any action or proceeding relating to any such dispute.  Nothing in this Section 9.14 shall affect the rights of any party hereto to serve legal process in any other manner permitted by applicable law.  Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable Legal Requirement, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement in any court referred to in this Section 9.14.  Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable Legal Requirement, the defense of any inconvenient forum to the maintenance of such action or proceeding in any such court.  Each Credit Party that is a party hereto and that is not organized under the laws of the United States, any state of the United States or the District of Columbia (each, a “Foreign Credit Party”) does hereby irrevocably appoint the US Borrower (the “Process Agent”), with an office on the date hereof at the address specified in Section 9.9, as its agent to receive on its behalf service of copies of any summons or complaint or any other process which may be served in any action arising under or in connection with any Credit Document.  Such service may be made by mailing or delivering a copy of such process to any Foreign Credit Party in care of the Process Agent at the Process Agent’s address as provided herein, and each Foreign Credit Party hereby irrevocably authorizes and directs the Process Agent to receive such service on its behalf.  Notwithstanding

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the foregoing, the parties agree that each Secured Party retains the right to bring proceedings against any Credit Party in the courts of any other competent jurisdiction solely in connection with the exercise of any rights and remedies under any Credit Document and any rights and remedies available under applicable law in connection with the Credit Documents.    

Execution in Counterparts.

 This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or by e-mail “PDF” copy shall be effective as delivery of a manually executed counterpart of this Agreement.

Electronic Execution of Assignments.

 The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Acceptance shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

Waiver of Jury.

 EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS Section 9.17.

USA Patriot Act and Beneficial Ownership Regulation.

 Each Lender that is subject to the Patriot Act and the US Administrative Agent (for itself and not on behalf of any Lender) hereby notifies each Credit Party that pursuant to the requirements of the Patriot Act it is required to obtain, verify and record information that identifies such Credit Party, which information includes the name and address of such Credit Party and other information that will allow such Lender or the US Administrative Agent, as applicable, to identify such Credit Party in accordance with the Patriot Act. Following a request by any Secured Party, each Credit Party shall promptly furnish all documentation and other information (including, without limitation, a Beneficial Ownership Certification) that such Secured Party reasonably requests in order to comply with its ongoing obligations under the applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and Beneficial Ownership Regulation.

Conflicts with Other Credit Documents.

 To the fullest extent possible, the terms and provisions of this Agreement shall be read together with the terms and provisions of the other Credit Documents so that the terms and provisions of this Agreement do not conflict with the terms and provisions of the other Credit Documents; provided, however, notwithstanding the foregoing and other than as to the AutoBorrow Agreement, in the event that any of the terms or provisions of this Agreement conflict or are inconsistent with any terms or provisions of any other Credit Document, the terms or provisions of this Agreement shall govern and control for all purposes; provided that the inclusion in any other Credit

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Document of terms and provisions, and supplemental rights or remedies in favor of the Administrative Agents, which are not addressed in this Agreement shall not be deemed to be in conflict with this Agreement and all such additional terms, provisions, supplemental rights or remedies in the other Credit Documents shall be given full force and effect.

Judgment Currency.

 If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Credit Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the US Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given.  The obligation of any Borrower in respect of any such sum due from it to any Secured Party hereunder or under the other Credit Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the such Secured Party, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the such Secured Party, as the case may be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency.  If the amount of the Agreement Currency so purchased is less than the sum originally due to any Secured Party from the applicable Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Secured Party, as the case may be, against such loss.  If the amount of the Agreement Currency so purchased is greater than the sum originally due to any Secured Party in such currency, such Secured Party, as the case may be, agrees to return the amount of any excess to such Borrower (or to any other Person who may be entitled thereto under applicable Legal Requirement).

Subordination Agreements.

 Each Administrative Agent is hereby authorized on behalf of the Lenders, the Swing Line Lender and the Issuing Lender to enter into subordination agreements which contain the terms substantially similar to those set forth under Schedule 6.19 hereof.  A copy of each such subordination agreement will be made available to each Secured Party upon request.  Each Secured Party (by receiving the benefits thereunder and of the Collateral) acknowledges and agrees to the terms of such subordination agreements and agrees that the terms thereof shall be binding on such Secured Party and its successors and assigns, as if it were a party thereto.

Confirmation of Flood Policies and Procedures.

 Wells Fargo has adopted internal policies and procedures that address requirements placed on federally regulated lenders under the National Flood Insurance Reform Act of 1994 and related legislation (the “Flood Laws”).  Wells Fargo, as Administrative Agent, will post on the applicable electronic platform (or otherwise distribute to each Lender) documents that it receives in connection with the Flood Laws; however, Wells Fargo reminds each Lender and Participant that, pursuant to the Flood Laws, each federally regulated Lender (whether acting as a Lender or Participant) is responsible for assuring its own compliance with the flood insurance requirements.

Keepwell.

 Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Credit Party to honor all of its obligations under this Agreement in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 9.23 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 9.23, or otherwise under this Agreement, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the termination of all Commitments and payment in full of all Secured Obligations (other than contingent indemnification

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obligations) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the US Administrative Agent and the Issuing Lender have been made). Each Qualified ECP Guarantor intends that this Section 9.23 constitute, and this Section 9.23 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Credit Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

No Fiduciary Duty.

 Notwithstanding anything herein or in any other Credit Document to the contrary, in connection with, or in any way related to, this Agreement and the transactions contemplated hereby (including the Transactions), each Borrower hereby acknowledges and agrees that: (a) each Secured Party is, has been, and will be acting solely as a principal and not as a financial advisor, agent or fiduciary, for any Borrower or any of any Borrower’s respective affiliates, equity holders, directors, officers, employees, creditors or any other Person except as to maintaining a register as provided in Section 9.7 as a non-fiduciary agent of the applicable Borrower for that limited purpose, (b) no Secured Party or any Affiliate thereof has assumed or will assume an advisory, agency or fiduciary responsibility in any Borrower’s or any of any Borrower’s respective Affiliates’ favor with respect to this Agreement or any of the transactions contemplated hereby (including the Transactions) or the process leading thereto (irrespective of whether any Secured Party or any of its Affiliates has advised or is currently advising any Borrower or any of any Borrower’s respective Affiliates on other matters), and (c) no Secured Party has provided any legal, accounting, regulatory or tax advice with respect to this Agreement or any of the transactions contemplated hereby (including the Transactions) and the Borrowers have consulted with their own legal, accounting, regulatory and tax advisors to the extent the Borrowers has deemed appropriate.  Each Borrower hereby waives and releases, to the fullest extent permitted by Legal Requirement, any claims that such Borrower may have against any Secured Party and their respective Affiliates with respect to any breach or alleged breach of agency or fiduciary duty.

Cashless Settlement.

 Notwithstanding anything to the contrary contained in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Advances in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the applicable Borrower, the applicable Administrative Agent and such Lender.

Amendment and Restatement.

 The Borrowers, Parent, Guarantors, the Swing Line Lender, the Issuing Lender, the other Lenders party hereto, and the Administrative Agents have agreed that this Agreement is an amendment and restatement of the Existing Credit Agreement in its entirety, and this Agreement is not a novation of the Existing Credit Agreement. 

Acknowledgement and Consent to Bail-In of EEA Financial Institutions.

 Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding of the parties hereto, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Credit Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

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Obligations Joint and Several and Unconditional

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Each Borrower hereby expressly waives, with respect to the Other Borrower Obligations diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that any Administrative Agent, the Swing Line Lender, the Issuing Lender or any Lender exhaust any right, power or remedy or proceed against the other Borrowers under this Agreement or the Notes or any other Credit Document, or against any other Person under any other guarantee of, or security for, any of the Other Borrower Obligations.

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Integration.

 THIS WRITTEN AGREEMENT AND THE CREDIT DOCUMENTS, AS DEFINED IN THIS AGREEMENT, REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND SUPERSEDE ALL PRIOR UNDERSTANDINGS AND AGREEMENTS, WHETHER WRITTEN OR ORAL, RELATING TO THE TRANSACTIONS PROVIDED FOR HEREIN AND THEREIN.  ADDITIONALLY, THIS AGREEMENT AND THE CREDIT DOCUMENTS MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.

THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

In executing this agreement, THE borrower hereby warrants and represents it is not relying on any statement or representation other than those in this agreement and is relying upon its own judgment and advice of its attorneys.

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