8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported):

May 8, 2020 (May 8, 2020)

Internap Corporation

(Exact Name of Registrant as Specified in Charter)

Delaware	001-31989	91-2145721
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

12120 Sunset Hills Road, Suite 330, Reston, Virginia	20190
(Address of Principal Executive Offices)	(Zip Code)

Registrant’s telephone number, including area code: (404) 302-9700

(Former Name or Former Address, if Changed Since Last Report)

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

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-2(c))

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

Emerging growth company ☐

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

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

Title of each class:	Trading Symbol(s)	Name of each exchange on which registered:
None	None	None

Explanatory Note

As previously disclosed, on March 16, 2020, Internap Corporation (“INAP”) and its affiliates Datagram LLC, Hosting Intellect LLC, Internap Connectivity LLC, SingleHop LLC, Ubersmith, Inc. and Internap Technology Solutions Inc. (collectively with INAP, the “Debtors”) filed voluntary petitions (the “Chapter 11 Cases”) in the United States Bankruptcy Court for the Southern District of New York, White Plains Division (the “Bankruptcy Court”) seeking relief under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”). The Debtor’s Chapter 11 Cases are jointly administered under the caption In re Internap Technology Solutions Inc. et al. The Debtors filed a joint Chapter 11 plan of reorganization and a related disclosure statement with the Bankruptcy Court in accordance with the Bankruptcy Code (the “Plan”). As previously disclosed, on May 5, 2020, the Bankruptcy Court entered an order approving the disclosure statement and confirming the Plan.

On May 8, 2020 (the “Effective Date”), the Plan became effective in accordance with its terms and the Company emerged from the Chapter 11 Cases.  As part of the transactions undertaken pursuant to the Plan, INAP was converted from a Delaware corporation to a Delaware limited liability company (the “Conversion”) and renamed Internap Holding LLC (referred to herein for post-emergence periods as the “Company”).  In connection with the Conversion, the Company entered into that certain Limited Liability Company Agreement (the “LLC Agreement”) and issued common units in accordance with the Plan and LLC Agreement (“Common Units”).

Item 1.01 Entry into a Material Definitive Agreement.

Exit Credit Agreement

On the Effective Date, the Company, certain of its subsidiaries, the lenders party thereto and Wilmington Trust, National Association, as administrative and collateral agent, entered into a Senior Secured Term Loan Credit Agreement (the “Exit Credit Agreement”).

The Exit Credit Agreement provides for, among other things, the conversion and refinance of certain loans under INAP’s DIP Facility (as defined in INAP’s Current Report on Form 8-K filed with the Securities and Exchange Commission on March 19, 2020) into term loans in an aggregate principal amount of $75.1 million. All term loans under the Exit Credit Agreement bear interest at a rate of either: (i) an applicable base rate plus 9.0% per annum or (ii) LIBOR plus 10.0% per annum.

Use of Proceeds.The proceeds of the Exit Credit Agreement will be used for, among other things: (i) the repayment of all obligations under the DIP Facility, (ii) the payment of  related transaction costs, fees and expenses with respect to the negotiation of agreements and the Company’s exit from the Chapter 11 Cases, (iii) to make other payments in accordance with the approved budget and (iv) for working capital and other general corporate purposes.

Priority and Collateral.The obligations under the Exit Credit Agreement will rank senior in payment to the obligations under the Second Out Term Loan Agreement (as hereinafter defined) and junior or pari passu with obligations under revolving credit facilities that may be established from time to time in a principal amount not to exceed $25.0 million (“Revolving Credit Facilities”) and will be secured by substantially all of the assets of the Company and its subsidiaries party thereto, subject to customary carve-outs.

Affirmative and Negative Covenants.  The Exit Credit Agreement contains certain affirmative and negative covenants, including customary affirmative covenants related to providing financial information, maintaining ordinary business operations and compliance with the obligations of the Plan and customary negative covenants related to incurrence of indebtedness, creation of liens, making of investments, engaging in mergers or combinations, disposal of assets, declaration of dividends and distributions, transaction with affiliates, compliance with leverage ratios and similar covenants.

Events of Default.The Exit Credit Agreement contains certain customary events of default, including payment of interest and loan amounts due, compliance with covenants, events of insolvency or filing for bankruptcy and similar obligations.

Maturity. The loans under the Exit Credit Agreement will mature the earlier of (i) May 8, 2023 and (ii) the date on which the obligations become due and payable, whether by acceleration or otherwise.

The foregoing description of the Exit Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Exit Credit Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference in this Item 1.01.

Second Out Term Loan Credit Agreement

On the Effective Date, the Company, certain of its subsidiaries, the lenders party thereto and Wilmington Trust, National Association, as administrative and collateral agent, entered into a term loan credit agreement (the “Second Out Term Loan Agreement”).

The Second Out Term Loan Agreement provides for, among other things, the conversion and refinance of certain loans under INAP’s Pre-Petition Credit Agreement (as defined therein) into term loans in an aggregate principal amount of up to $225.0 million. All term loans under the Second Term Loan Agreement bear interest at a rate of either: (i) an applicable base rate plus 5.50% per annum or (ii) LIBOR plus 6.50% per annum.  Of the interest rates under the Second Out Term Loan Agreement, LIBOR plus 300 basis points will be payable in cash and the remaining LIBOR plus 350 basis points will be payable in kind, provided, that the Company may elect to pay 200 basis points of the LIBOR plus 300 basis points in cash to instead be payable in kind.

Use of Proceeds.Term loans under the Second Out Term Loan Agreement were incurred by the Company in connection with the Company’s obligations under the Plan to holders of Allowed Existing Loan Claims (as defined in the Plan).

Priority and Collateral.Obligations under the Second Out Term Loan Agreement will rank junior to obligations under the Exit Credit Agreement and Revolving Credit Facilities and will be secured by substantially all of the assets of the Company and its subsidiaries party thereto, subject to customary carve-outs.

Affirmative and Negative Covenants. The Second Out Term Loan Agreement contains certain affirmative and negative covenants, including customary affirmative covenants related to providing financial information, maintaining ordinary business operations and compliance with the Plan and customary negative covenants related to incurrence of indebtedness, creation of liens, making of investments, engaging in mergers or combinations, disposal of assets, declaration of dividends and distributions, transaction with affiliates, compliance with leverage ratios and similar covenants.

Events of Default.The Second Out Term Loan Agreement contains certain customary events of default, including payment of interest and loan amounts due, compliance with covenants, events of insolvency or filing for bankruptcy and similar obligations.

Maturity. The loans under the Second Out Term Loan Agreement will mature the earlier of (i) May 8, 2025, and (ii) the date on which the obligations become due and payable, whether by acceleration or otherwise.

The foregoing description of the Second Out Term Loan Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Second Out Term Loan Agreement, a copy of which is filed as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated by reference in this Item 1.01.

Warrant Agreement

On the Effective Date, in accordance with the Plan, the Company and American Stock Transfer & Trust Company, LLC, as warrant agent, entered into the warrant agreement (the “Warrant Agreement”) governing the warrants issued pursuant to the Plan (the “Warrants”).  The Warrants are exercisable for an aggregate of 1,120,836 Common Units at an exercise price of $4.81 per Common Unit, subject to adjustment as described in the Warrant Agreement, and expire on May 8, 2024.  The Warrant Agreement contains certain restrictions on transfer of the Warrants and other customary terms and conditions as set forth therein.

The foregoing description of the Warrant Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Warrant Agreement, a copy of which is filed as Exhibit 10.3 to this Current Report on Form 8-K and is incorporated by reference in this Item 1.01.

Item 1.02 Termination of a Material Definitive Agreement.

Equity Interests

Pursuant to the Plan, INAP’s existing common stock, $0.001 par value per share (the “Common Stock”) including stock options to acquire such existing Common Stock, have been cancelled as of the Effective Date. The Company issued Common Units and Warrants to holders of claims and interests entitled to receive such Common Units or Warrants pursuant to the Plan.

Indebtedness

In accordance with the Plan, on the Effective Date, the obligations of the Debtors with respect to the following indebtedness were cancelled and discharged:

● Senior Secured Super-Priority Debtor-In-Possession Credit Agreement dated as of March 19, 2020 among INAP, the guarantors party thereto, the lenders party thereto and Jefferies Finance LLC, as administrative agent and collateral agent.

● Credit Agreement dated as of April 6, 2017 among INAP, the guarantors party thereto, the lenders party thereto, Jefferies Finance LLC, as administrative agent and collateral agent, Jefferies Finance LLC and PNC Capital Markets LLC, as joint lead arrangers, PNC Bank, National Association, as syndication agent and as issuing bank, and Jefferies Finance LLC, as documentation agent, sole book manager and as swingline lender.

On the Effective Date, except as otherwise provided in the Plan, the obligations of the Debtors under the foregoing, and any other certificate, equity security, share, note, purchase right, option, warrant, or other instrument or document directly or indirectly evidencing or creating any indebtedness or obligation of, or ownership interest in, the Debtors, shall be deemed cancelled, surrendered, and discharged as to the Debtors and otherwise satisfied in full and released, and the reorganized Debtors shall not have any continuing obligations thereunder or in any way related thereto.

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

The information set forth in Item 1.01 under the headings “Exit Credit Agreement’ and “Second Out Term Loan Credit Agreement” above is incorporated by reference into this Item 2.03.

Item 3.02 Unregistered Sales of Equity Securities

On the Effective Date, the Company issued the following in accordance with the Plan:

● 50,000,000 Common Units to Holders of Allowed Existing Loan Claims (as defined in the Plan); and

● Warrants to purchase an aggregate of 1,120,836 Common Units to holders of Existing Equity Interests (as defined in the Plan) who granted releases in accordance with the Plan.

The Common Units and Warrants were issued under the Plan pursuant to exemptions from the registration requirements of the Securities Act of 1933 under Section 1145 of the Bankruptcy Code.

As of the Effective Date, there were 50,000,000 Common Units issued and outstanding.

Item 3.03 Material Modification to Rights of Security Holders.

Pursuant to the Plan, the Company’s existing Common Stock, including options, were cancelled on the Effective Date. For further information, see the Explanatory Note and Items 1.02 and 3.02 of this Current Report on Form 8-K, which are incorporated by reference herein.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Departure of Directors

Pursuant to the Plan, Peter D. Aquino, Gary M. Pfeiffer, David B. Potts, Peter J. Rogers, Jr., Lance L. Weaver and Debora J. Wilson ceased to be directors of INAP.

Appointment of Directors

The LLC Agreement provides that the Company will have a seven-person board of directors (the “Board”).  As of the Effective Date, Michael T. Sicoli has been designated as the sole member of the Board.

Except for arrangements relating to the implementation of the Plan, there are no arrangements or understandings between Mr. Sicoli and any other person pursuant to which Mr. Sicoli was selected as a director. The Company is not aware of any transaction in which Mr. Sicoli has an interest requiring disclosure under Item 404(a) of Regulation S-K.

Officer Resignation and Appointment

On May 8, 2020, Peter D. Aquino resigned as Chief Executive Officer of INAP.  In connection with Mr. Aquino’s resignation and following consummation of the Plan, the Company and Mr. Aquino entered into a release agreement (the “Release Agreement”) pursuant to which Mr. Aquino released all claims against the Company and specified related parties and the Company agreed to make payments to Mr. Aquino of (i) $1,652,000 payable in equal installments through December 31, 2020, (ii) $570,000 in lump sum on the second anniversary of Mr. Aquino’s separation date and (iii) $200,000 upon the earliest to occur of (x) the first payroll date in March 2021 (but no later than March 15, 2021) and (y) the consummation of a change of control transaction following Mr. Aquino’s separation date.  The foregoing description of the Release Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Release Agreement, a copy of which is filed as Exhibit 10.4 to this Current Report on Form 8-K and is incorporated by reference in this Item 5.02.

On May 8, 2020, Michael T. Sicoli became Chief Executive Officer of the Company.

Mr. Sicoli served as President and Chief Financial Officer of INAP from October 2019 to May 2020.  Prior thereto, Mr. Sicoli served as Chief Financial Officer of GTT Communications Inc. (NYSE: GTT), a publicly-traded provider of cloud networking services to multinational clients from April 2015 to September 2019. Prior to joining GTT, he served as principal of MTS Advisors, LLC, a consulting and advisory services firm he founded in 2013. From 2010 to 2013, he served as Chief Executive Officer of Sidera Networks, a fiber optic service provider that was merged with Lightower Fiber Networks in 2013. From 2005-2010, Mr. Sicoli served as Chief Financial Officer of RCN Corporation, where he reported to Peter Aquino until the go-private transaction in 2010.  Prior to that, Mr. Sicoli held various positions at Nextel Communications, Deloitte Consulting, and Accenture. Mr. Sicoli recently served as a director of Lumos Networks, a fiber-based bandwidth infrastructure and service provider in the Mid-Atlantic region.  Mr. Sicoli holds a Bachelor of Arts in Economics from The College of William and Mary and an MBA from The University of Virginia, Darden Graduate School of Business Administration.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

LLC Agreement

On the Effective Date, to implement the Conversion, INAP filed with the Secretary of State of the State of Delaware a Certificate of Conversion (the “Certificate of Conversion”) and a Certificate of Formation (the “Certificate of Formation”). The full text of the Certificate of Conversion and Certificate of Formation are filed herewith as Exhibits 3.1 and 3.2, respectively, and are incorporated by reference into this Item 5.03.

In accordance with the Plan, the LLC Agreement of the Company became effective on the Effective Date. The description of the LLC Agreement set forth below is qualified in its entirety by reference to the full text of the LLC Agreement, which is filed herewith as Exhibit 3.3 and is incorporated by reference into this Item 5.03.

Organization and Duration

The Company, which prior to the Conversion was named Internap Corporation, was converted from a Delaware corporation to a Delaware limited liability company on the Effective Date, and shall continue in existence until the dissolution of the Company in accordance with the terms of the LLC Agreement.

The Company will initially have Common Units issued and authorized for issuance.  Subject to the rights of any outstanding Company securities that may be authorized and issued from time to time after the Effective Date, only Common Units will be entitled to vote on matters presented to the members for approval.

Tax Election

The Company has elected to be treated as a corporation for U.S. federal income tax purposes.

Distribution Rights

The Board shall have sole and absolute discretion regarding the amount and timing of distributions to the members, subject to approval by holders of not less than a majority of the Common Units, and all such distributions shall be made pro rata in accordance with the number of Common Units held by each member.

Authorization to Issue Units

The Company will initially have 57,500,000 Common Units authorized for issuance.  The Company is authorized to issue additional units in one or more classes, or one or more series of any such classes, with such designations, preferences, rights, powers and duties (which may be senior to existing classes and series of units), as shall be fixed by the Board, subject to approval by holders of not less than a majority of the Common Units.

If the Company proposes to issue equity securities, subject to specified exceptions, each holder of Common Units shall have the right, but not an obligation, to purchase its pro rata portion of such equity securities.

Transfer Restrictions

The Common Units are subject to specified restrictions on transfer as set forth in the LLC Agreement, including restrictions designed to protect the Company’s net operating loss carryforwards.  In addition to the transfer restrictions, Common Units are subject to certain further transfer obligations, including a right of first offer to certain existing holders, “tag along” obligations and “drag along” obligations.

Registration Rights

Certain holders of Common Units have the ability under the LLC Agreement to cause the Company to file and have declared effective a registration statement for the offering of the Company’s securities.  In the event that there is a public offering of units by the Company, the holders of Common Units generally have the ability to offer and sell their securities along with the Company’s securities.

Member Approval

The LLC Agreement specifies various Company actions that require the separate approval by the members of the Company, in addition to Board approval.

Board of Directors

The business and affairs of the Company shall be managed by or under the direction of the Board.  The number and identities of the directors appointed as of the Effective Time is set forth in Item 5.02 of this Current Report on Form 8-K.

The number of directors and may be increased or decreased from time to time by resolution of the Board, subject to the approval of the members of the Company and the restrictions specified in the LLC Agreement. Certain members have the right to appoint a director for so long as their ownership of Common Units exceeds a specified level.

Duties and Liability

Pursuant to the LLC Agreement, each party to the LLC Agreement broadly waives fiduciary duties and prohibitions on usurping opportunities of the Company, that absent such waiver, may be implied at law or in equity or otherwise owed to another party.  The LLC Agreement also contains broad exculpatory provisions that apply to the members and certain related parties.

In performing its duties, each director shall be entitled to rely in good faith on the provisions of  the LLC Agreement and on information, opinions, reports or statements of one or more officers or employees of any of the Company or its subsidiaries, any attorney, independent accountant or other person employed or engaged by the Company or any of its subsidiaries, or any other person who has been selected with reasonable care by or on behalf of the Company or any of its subsidiaries, in each case, as to matters which such relying person reasonably believes to be within such other person’s professional or expert competence.

Special Meeting

Special meetings of the members of the Company may be called by one or more members who are collectively record holders of 25% or more of the Common Units. Each special meeting shall be held at a time and place determined by the Board on a date not less than 20 days nor more than 60 days after the mailing of notice of the meeting. To call a special meeting, members must deliver to the Company one or more requests in writing stating that the signing members wish to call a special meeting and indicating the general or specific purposes for which the special meeting is to be called.

Action Without a Meeting

Members may take any action required or permitted to be taken at any meeting of the members without a meeting, if members having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted consent in writing or electronic submission; provided, that prompt notice must be given to all members of the taking of corporate action without a meeting when such action is taken by less than unanimous written consent.

Amendment of the LLC Agreement

The LLC Agreement may be amended by holders of at least a majority of the outstanding Common Units, except that no amendment may adversely affect a member relative to other members without such member’s prior written consent and no amendment may amend the Board nomination rights of a member without such member’s consent.

Indemnification

Under the LLC Agreement, in most circumstances, the Company will indemnify any member, director and each officer, manager and director of the Company and its subsidiaries and any other person, to the fullest extent permitted by law from and against any and all liabilities arising out of or related to any act or omission performed or omitted by such person on behalf of the Company if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company.

Item 8.01 Other Events.

Deregistration of INAP Securities

The Company intends to file a Form 15 with the Securities and Exchange Commission (the “SEC”) on May 8, 2020 to deregister the Common Stock, under Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and suspend its reporting obligations under Section 15(d) of the Exchange Act.  Upon filing the Form 15, INAP’s obligations to file certain reports and forms with the SEC, including Forms 10-K, 10-Q and 8-K, will be immediately suspended. 

Forward-Looking Statements

Certain statements in this Form 8-K contain “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These statements are often identified by words such as “may,” “will,” “seeks,” “anticipates,” “believes,” “estimates,” “expects,” “projects,” “forecasts,” “plans,” “intends,” “continue,” “could” or “should,” that an “opportunity” exists, that the Company is “positioned” for a particular result, statements regarding the Company’s vision or similar expressions or variations. These statements are based on the beliefs and expectations of the Company’s management team based on information available at the time such statements are made. Such forward-looking statements are not guarantees of future performance and are subject to risks and uncertainties that could cause actual results to differ materially from those contemplated by such forward-looking statements.

Therefore, actual future results and trends may differ materially from what is forecast in such forward-looking statements due to a variety of factors. These risks and other important factors discussed under the caption “Risk Factors” in the Company’s most recent Annual Report on Form 10-K filed with the SEC and the Company’s other reports filed with the SEC could cause actual results to differ materially from those expressed or implied by forward-looking statements made in this Form 8-K.

Given these risks and uncertainties, investors should not place undue reliance on forward-looking statements as a prediction of actual results. All forward-looking statements attributable to the Company or persons acting on the Company’s behalf are expressly qualified in their entirety by the foregoing forward-looking statements. All such statements speak only as of the date made, and the Company undertakes no obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

3.1	Certificate of Conversion of the Company, dated May 8, 2020
3.2	Certificate of Formation of the Company, dated May 8, 2020
3.3	Limited Liability Company Agreement, dated May 8, 2020
10.1	Senior Secured Term Loan Credit Agreement dated as of May 8, 2020, among the Company, the guarantors from time to time party hereto, the several banks and other financial institutions from time to time party hereto and Wilmington Trust, National Association, as administrative agent for the lenders and as collateral agent
10.2	Second Out Term Loan Credit Agreement dated as of May 8, 2020, among the Company, the guarantors from time to time party hereto, the several banks and other financial institutions from time to time party hereto and Wilmington Trust, National Association, as administrative agent and as collateral agent
10.3	Warrant Agreement, dated May 8, 2020, by and between the Company and American Stock Transfer & Trust Company, LLC
10.4	Release Agreement, dated May 8, 2020 between INAP and Peter Aquino

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.

	INTERNAP CORPORATION
Date: May 8, 2020	By:	/s/ Michael T. Sicoli
		Michael T. Sicoli
		Chief Executive Officer

EX-3.1

Exhibit 3.1

STATE OF DELAWARE

CERTIFICATE OF CONVERSION

FROM A CORPORATION TO A

LIMITED LIABILITY COMPANY PURSUANT TO

SECTION 18-214 OF THE LIMITED LIABILITY ACT

1. The jurisdiction where the Corporation was first formed is Delaware.

2. The jurisdiction immediately prior to filing this Certificate is Delaware.

3. The date the Corporation was first formed is July 25, 2001.

4. The name of the Corporation immediately prior to filing this Certificate is Internap Corporation.

5. The name of the Limited Liability Company as set forth in the Certificate of Formation is Internap Holding LLC.

 IN WITNESS WHEREOF, the undersigned has executed this Certificate this 8th day of May, 2020.

By:  /s/ Michael T. Sicoli

Name: Michael T. Sicoli, Chief Executive Officer

Title: Authorized Person

EX-3.2

Exhibit 3.2

CERTIFICATE OF FORMATION

OF

INTERNAP HOLDING LLC

Under Section 18-201 of the Delaware

Limited Liability Company Act

This Certificate of Formation of Internap Holding (the “Company”), dated as of May 8, 2020, is being duly executed and filed by Michael Sicoli, as an authorized person, to form a limited liability company under Section 18-201 of the Delaware Limited Liability Company Act  (the “LLCA”) of the State of Delaware.

FIRST: The name of the limited liability company is Internap Holding LLC.

SECOND: The address of the registered office of the Company in the State of Delaware is c/o Registered Agent Solutions, Inc. 9 E. Loockerman Street, Suite 311, City of Dover, County of Kent, Delaware 19901.

THIRD: The name and address of the registered agent for service of process on the Company, required to be maintained in the State of Delaware by Section 18-104 of the LLCA is Registered Agent Solutions, Inc. 9 E. Loockerman Street, Suite 311, City of Dover, County of Kent, Delaware 19901.

IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation and affirms that the statements made herein are true, under the penalties of perjury, as of the date first above written.

By:	/s/ Michael T. Sicoli
Name: Michael T. Sicoli, Chief Executive Officer
Title: Authorized Person

EX-3.3

Exhibit 3.3

LIMITED LIABILITY COMPANY AGREEMENT

OF

INTERNAP HOLDING LLC,

a Delaware limited liability company,

Dated as of May 8, 2020

THE UNITS REFERENCED HEREIN HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR OTHER APPLICABLE SECURITIES LAWS.  WITHOUT REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTIONS THEREFROM, THESE SECURITIES MAY NOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER, EXCEPT ON DELIVERY TO THE COMPANY OF AN OPINION OF COUNSEL SATISFACTORY TO THE BOARD OF THE COMPANY THAT REGISTRATION IS NOT REQUIRED FOR THE TRANSFER, OR THE SUBMISSION TO THE BOARD OF THE COMPANY OF OTHER EVIDENCE SATISFACTORY TO THE BOARD TO THE EFFECT THAT ANY TRANSFER WILL NOT BE IN VIOLATION OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, AND OTHER APPLICABLE SECURITIES LAWS OR ANY RULES OR REGULATIONS PROMULGATED THEREUNDER.  ADDITIONALLY, ANY SALE OR OTHER TRANSFER OF ANY SUCH UNIT IS SUBJECT TO CERTAIN RESTRICTIONS THAT ARE SET FORTH IN THOSE REGULATIONS AND THE FOLLOWING AGREEMENT AND CANNOT BE SOLD, ASSIGNED, PLEDGED, HYPOTHECATED, OR OTHERWISE TRANSFERRED AT ANY TIME WHATSOEVER WITHOUT COMPLIANCE WITH SUCH RESTRICTIONS AND OTHER TERMS OF THIS AGREEMENT.

TABLE OF CONTENTS

			Page
ARTICLE I DEFINITIONS			1
	1.1	Definitions	1
	1.2	Interpretative Matters	11
ARTICLE II ORGANIZATIONAL MATTERS			11
	2.1	Formation of the Company	11
	2.2	Effect of Agreement	12
	2.3	Name	12
	2.4	Powers; Purposes	12
	2.5	Principal Office; Registered Office	12
	2.6	Term	13
	2.7	Foreign Qualification	13
	2.8	Company Status	13
ARTICLE III ADMISSION OF MEMBERS; CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS			13
	3.1	Capitalization	13
	3.2	Admission of Members; Additional Members	14
	3.3	No Withdrawal	15
	3.4	Loans From Members	15
	3.5	No Right of Partition	15
	3.6	Non-Certification of Units; Legend; Units Are Securities	15
ARTICLE IV DISTRIBUTIONS			15
	4.1	Distributions	15
	4.2	Successors	16
	4.3	Distributions In-Kind	16
	4.4	Right of Set-Off	16
	4.5	Restriction	16
ARTICLE V RIGHTS AND DUTIES OF MEMBERS			16
	5.1	Power and Authority of Members	16
	5.2	Voting Rights	16
	5.3	Liability of Members	16
	5.4	Performance of Duties; Conflicts of Interest	17
	5.5	Member Meetings and Actions	17
	5.6	Approving Certain Matters	20
ARTICLE VI MANAGEMENT OF THE COMPANY			22
	6.1	Management Authority	22
	6.2	Board Composition	22
	6.3	Meetings of the Board	24
	6.4	Quorum; Acts of the Board	24

i

TABLE OF CONTENTS (continued)

			Page
	6.5	Electronic Communications	25
	6.6	Committees of the Board	25
	6.7	Compensation of Directors; Expenses	25
	6.8	Removal of Directors	25
	6.9	Resignations	25
	6.10	Newly Created Management Positions and Vacancies	26
	6.11	Directors as Agents	26
	6.12	Officers.	26
	6.13	Waiver of Fiduciary Duties	28
	6.14	No Liability to Company or Members	29
	6.15	Delegation of Authority	29
	6.16	Performance of Duties; Liability of Directors and Officers; Opportunities	30
	6.17	Indemnification	29
	6.18	Corporate Opportunities	33
ARTICLE VII TAX MATTERS			34
	7.1	Tax Elections	34
	7.2	Fiscal Year; Taxable Year	34
ARTICLE VIII TRANSFER OF UNITS; SUBSTITUTE MEMBERS			35
	8.1	Transfer Restrictions	35
	8.2	Right of First Offer	42
	8.3	Tag-Along	44
	8.4	Drag-Along Rights	46
	8.5	Rights to Participate in Certain Offerings	48
	8.6	Substituted Member	51
	8.7	Effect of Transfer	51
	8.8	Additional Transfer Restrictions	51
	8.9	Transfer Fees and Expenses	51
	8.10	Reorganization Date of Transfers	51
	8.11	Effect of Death or Incapacity	52
	8.12	Board Consent	52
ARTICLE IX DISSOLUTION AND LIQUIDATION			52
	9.1	Dissolution	52
	9.2	Liquidation and Termination	52
	9.3	Complete Distribution	53
	9.4	Cancellation of Certificate	53
	9.5	Reasonable Time for Winding Up	53
	9.6	Return of Capital	53
	9.7	HSR Act	53
	9.8	Termination	54

ii

TABLE OF CONTENTS (continued)

			Page
ARTICLE X CERTAIN AGREEMENTS			54
	10.1	Registration Rights	54
	10.2	Financial Statements; Earnings Calls	72
ARTICLE XI GENERAL PROVISIONS			72
	11.1	Amendment	72
	11.2	Remedies	72
	11.3	Successors and Assigns	74
	11.4	Severability	74
	11.5	Counterparts	74
	11.6	Applicable Law	74
	11.7	Addresses and Notices	75
	11.8	Creditors	75
	11.9	Waiver	75
	11.10	Further Action	75
	11.11	Entire Agreement	75
	11.12	Delivery by Facsimile or Email	75
	11.13	Survival	76
	11.14	Confidentiality	76
	11.15	Reimbursement of Expenses	77
	11.16	Waiver of Certain Damages	77
	11.17	Use of Member’s Names	77
	11.18	No Recourse	78

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LIMITED LIABILITY COMPANY AGREEMENT

OF

INTERNAP HOLDING LLC

THIS LIMITED LIABILITY COMPANY AGREEMENT (as it may be amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) of Internap Holding LLC, a Delaware limited liability company (the “Company”), dated as of May 8, 2020 (the “Reorganization Date”) is made by and among the Company and those Persons whose names and addresses are set forth in the Schedule of Members attached hereto and whose signatures appear on the counterpart signature pages attached hereto (as such Schedule of Members may be amended, restated, supplemented or modified from time to time).

RECITALS:

WHEREAS, the Company filed a Certificate of Incorporation with the Secretary of State of the State of Delaware on July 25, 2001 under the name, “Internap Delaware, Inc.” (as amended, the “Original Certificate of Incorporation”);

WHEREAS, the Original Certificate of Incorporation was amended and restated in its entirety pursuant to an Amended and Restated Certificate of Incorporation filed with the Secretary of State of the State of Delaware on June 6, 2019, in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware;

WHEREAS, on the date hereof, the Company was converted to limited liability company under the Delaware Act, by filing a certificate of conversion and certificate of formation (the “Certificate”) with the Secretary of State of the State of Delaware; and

WHEREAS, the Members of the Company desire to enter into this Agreement for purposes of setting forth the agreements governing the relations among the Members and to admit additional Members as provided herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein made and other good and valuable consideration, the parties hereby agree as follows:

ARTICLE I

DEFINITIONS

1.1         Definitions.  Unless the context otherwise requires, the following terms shall have the following meanings for purposes of this Agreement:

“Accredited Investor” means “an accredited investor” as defined under Rule 501(a) of Regulation D promulgated under the Securities Act.

“Action” means any legal, administrative, regulatory or other suit, action, claim, audit, assessment, arbitration or other proceeding, investigation or inquiry.

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“Additional Member” means any Person that has been admitted to the Company as a Member after the Reorganization Date pursuant to Section 3.2(b) by virtue of having received its Membership Interest from the Company and not from any other Member or Assignee.

“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made (including any investment fund the primary investment advisor to which is such Person or an Affiliate thereof); provided, that for purposes of this Agreement, no Member shall be deemed an Affiliate of the Company or any of its Subsidiaries.

“AG Member” means Angelo, Gordon & Co., L.P. and its Affiliates that are Members.

“Agent” means an agent designated by the Board.

“Alternative Transaction” means the sale of Registrable Securities constituting less than one percent (1%) of the outstanding equity securities of the Company to one (1) or more purchasers in a registered transaction without a prior marketing process by means of (a) a bought deal, (b) a block trade, or (c) a direct sale.

“Assignee” means any transferee to which a Member or another Assignee has Transferred all or a portion of its interest in the Company in accordance with the terms of this Agreement, but that is not a Member.

“Bankruptcy” means, with respect to any Person, the occurrence of any of the following events: (a) the filing of an application by such Person for, or a consent to, the appointment of a trustee or custodian of such Person’s assets; (b) the filing by such Person of a voluntary petition in Bankruptcy or the seeking of relief under Title 11 of the United States Code, as now constituted or hereafter amended, or the filing of a pleading in any court of record admitting in writing such Person’s inability to generally pay its debts as they become due; (c) the failure of such Person to pay its debts as such debts become due; (d) the making by such Person of a general assignment for the benefit of creditors; (e) the filing by such Person of an answer admitting the material allegations of, or such Person’s consenting to, or defaulting in answering, a Bankruptcy petition filed against such Person in any Bankruptcy proceeding or petition seeking relief under Title 11 of the United States Code, as now constituted or as hereafter amended; or (f) the entry of an order, judgment or decree by any court of competent jurisdiction adjudicating such Person as bankrupt or insolvent or for relief in respect of such Person or appointing a trustee or custodian of such Person’s assets and the continuance of such order, judgment or decree unstayed and in effect for a period of sixty (60) consecutive calendar days.

“BlackRock Member” means (i) BlackRock DLF IX 2019-G CLO, LLC, (ii) RELIANCE STANDARD LIFE INSURANCE COMPANY, (iii) SVOF/MM, LLC AC TCP DLF VIII 2018 CLO LLC, (iv) TCP Direct Lending Fund VIII-A, LLC, (v) TCP Direct Lending Fund VIII-L (Ireland), (vi) TCP Direct Lending Fund VIII-S, LLC, (vii) TCP Direct Lending Fund VIII-T, LLC, (viii) TCP Direct Lending Fund VIII-U (Ireland), (ix) TCP ENHANCED YIELD FUNDING I LLC, (x) TCP Rainier, LLC, (xi) TCP WATERMAN CLO, LLC, (xii) TCP Whitney CLO Ltd Loan, (xiii) TENNENBAUM SENIOR LOAN FUND II, LP, (xiv) Tennenbaum Senior Loan Fund V, LLC and (xv) their respective Affiliates that are Members.

“BSP Member” means Benefit Street Partners LLC and its Affiliates that are Members.

“Business” means the provision of colocation, cloud and network services.

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“Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed in New York, New York.

“Capital Contributions” means any cash, cash equivalents or, with the consent of the Board, the Fair Market Value of other property that a Member contributes to the Company with respect to any Unit or other Equity Securities issued pursuant to Article III (net of liabilities assumed by the Company or to which such property is subject).

“Carlyle Member” means Carlyle CLO Managment LLC and its Affiliates that are Members.

“Code” means the United States Internal Revenue Code of 1986, as amended from time to time.

“Commission” means the Securities and Exchange Commission or any other federal agency then administering the Securities Act or Exchange Act.

“Common Units” means the Units issued to the Members as of the date hereof, any Units issued after the date hereof and designated as Common Units and any other class or series of Units that the Board may in the future designate, in accordance with the terms of this Agreement, as Common Units.

“Company Securities” means (i) Units, (ii) warrants (including the Warrants), rights, or options (including options within the meaning of Treasury Regulation section 1.382-2T(h)(4)(v)) to purchase equity interests of the Company, and (iii) any other interest that would be treated as “stock” of the Company pursuant to Treasury Regulation section 1.382-2T(f)(18).

“control” means, including the terms “controlled by” and “under common control with”, as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

“Delaware Act” means the Delaware Limited Liability Company Act, Title 6, §§18-101 et seq., as it may be amended from time to time, or any corresponding provision or provisions of any succeeding or successor law of such State.

“Designated Units” means, as of any particular date of determination, the outstanding Common Units as of such date excluding (i) any Units issued pursuant to an Equity Incentive Plan and (ii) any Units of the Company issued after the Reorganization Date (including any Units issued upon the exercise of the Warrants); provided, that, notwithstanding the foregoing exclusions, “Designated Units” shall include outstanding Units issued as a split or dividend in respect of Units outstanding as of the Reorganization Date that are not otherwise excluded.

“Distribution” means each distribution made by the Company to a Member, whether in cash, property or securities, pursuant to, or in respect of, Article IV or Article IX.

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“Economic Interest” means the right to Distributions of cash and other property as provided in Article IV and Article IX of this Agreement and the Delaware Act, but shall not include any right to participate in the management or affairs of the Company, vote on, consent to or otherwise participate in any decision of the Members, or any right to receive information concerning the business and affairs of the Company, in each case, except as expressly otherwise provided in this Agreement or required by the Delaware Act.

“Equity Incentive Plan” means an incentive plan for the Company’s directors, officers, employees or consultants to be implemented by the Company and the Board following the date hereof and pursuant to which Common Units initially representing no more than ten percent (10%) of the aggregate number of Common Units outstanding (calculated on a fully-diluted basis) shall be issuable or any amendment thereof or other similar incentive equity plan approved by the Board.

“Equity Securities” means, as applicable, (a) any capital stock, partnership or limited liability company interests or other share capital, (b) any securities directly or indirectly convertible into or exchangeable for any capital stock, partnership or limited liability company interests or other share capital or containing any profit participation features, (c) any rights or options directly or indirectly to subscribe for or to purchase any capital stock, partnership or limited liability company interests, other share capital or securities containing any profit participation features or to subscribe for or to purchase any securities directly or indirectly convertible into or exchangeable for any capital stock, partnership or limited liability company interests, other share capital or securities containing any profit participation features, (d) any unit appreciation rights, phantom unit rights or other similar rights, or (e) any Equity Securities issued or issuable with respect to the securities referred to in clauses (a) through (d) above in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization.

“Excess Securities” means Company Securities that are the subject of the Prohibited Transfer.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Fair Market Value” means, with respect to any asset or securities (other than Units), the fair market value for such assets or securities as between a willing buyer and a willing seller in an arm’s length, non-distressed transaction occurring on the date of valuation, taking into account all relevant factors determinative of value, as reasonably determined by the Board in good faith.

“Family Member” means, with respect to any natural Person, such Person’s parents, spouse (but not including a former spouse or a spouse from whom such Person is legally separated) and descendants (whether or not adopted) and any trust, family limited partnership or limited liability company that is and remains solely for the benefit of such Person and such Person’s spouse (but not including a former spouse or a spouse from whom such Person is legally separated) or descendants.

“FINRA” means the Financial Industry Regulatory Authority.

“Fiscal Year” means the fiscal year of the Company and its Subsidiaries, ending on December 31 of each calendar year.

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“Group” means a “group” within the meaning of the regulations promulgated by the Commission under Section 13(d) of the Exchange Act.

“Independent Director” means an individual who qualifies as “independent” as such term is used in the New York Stock Exchange rules.

“Initial Directors” means the initial directors elected to the Board on or around the Reorganization Date.

“Initial Public Offering” shall mean the initial firm commitment underwritten Public Offering of Registrable Securities consummated for cash and registered under the Securities Act (other than a registration statement on Form S-4 or Form S-8 (or any similar or successor form)) pursuant to which the Registrable Securities are sold and concurrently listed on a national securities exchange in the United States.

“Issuer Free Writing Prospectus” means an issuer free writing prospectus, as defined in Rule 433, relating to an offer of the Registrable Securities.

“Major Transferee” means an Approved Transferee to which a Nominating Member Transfers, in accordance with the terms and conditions of this Agreement (including Section 6.2(d)), a number of Designated Units that, together with Designated Units held by Affiliates of such Approved Transferee, result in such Approved Transferee holding an aggregate number of Designated Units at least equal to the Minimum Threshold.

“Majority Investor Group” means, collectively, all Persons who, together with their Affiliates, as of a particular date of determination, hold a number of Common Units equal to at least six percent (6%) of the Common Units issued and outstanding as of such date.

“Majority of Included Registrable Securities” means a majority of the Registrable Securities included in the applicable Registration Statement.

“Member” means a Member identified on the Schedule of Members as of the Reorganization Date, or an Additional Member or Substituted Member or an Assignee who is admitted as a Member in accordance with the terms of this Agreement and the Delaware Act for so long as such Person continues to hold an Economic Interest in any of the Units.

“Member Associated Person” of any Member means (A) any person controlling, directly or indirectly, or acting in concert with, such Member and/or (B) any person controlling, controlled by or under common control, with such Member Associated Person.

“Membership Interest” means, with respect to each Member, such Member’s Economic Interest and rights as a Member.

“Minimum Threshold” means, as of a particular date of determination, nine percent (9%) of the Designated Units issued and outstanding as of such date.

“Nominating Member” means each of the AG Member, the BlackRock Member, the Carlyle Member, the BSP Member or any Major Transferee of such Members, in each case so long as such Person holds a number of Designated Units at least equal to the Minimum Threshold and does not otherwise Transfer and assign, in accordance with the terms and conditions of this Agreement (including Section 6.2(d)), its rights under Section 6.2 with respect to the designation of directors.

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“Other Registrable Securities” means (a) the Common Units, (b) any securities issued or issuable with respect to, on account of or in exchange for Common Units, whether by stock split, stock dividend, recapitalization, merger, consolidation or other reorganization, charter amendment or otherwise and (c) any options, warrants or other rights to acquire, and any securities received as a dividend or distribution in respect of, any of the securities described in clauses (a) and (b) above, in each case, held by any other Person who has rights to participate in any offering of securities by the Company pursuant to a registration rights agreement or other similar arrangement with the Company or any direct or indirect parent of the Company relating to the Common Units (which shall not include this Agreement).

“Percentage Equity Ownership” means the percentage equity ownership interest in the Company beneficially owned by any Person for purposes of section 382 of the Code, as determined in accordance with Treasury Regulation sections 1.382-2T(g), (h), (j) and (k) and 1.382-4; provided, that (1) for purposes of applying Treasury Regulation section 1.382-2T(k)(2), the Company shall be treated as having “actual knowledge” of the beneficial ownership of all outstanding Company Securities that would be attributed to any Person, and (2) for the sole purpose of determining the Percentage Equity Ownership of any entity (and not for the purpose of determining the Percentage Equity Ownership of any other Person), Company Securities held by such entity shall not be treated as no longer owned by such entity pursuant to Treasury Regulation section 1.382-2T(h)(2)(i)(A); provided, further, that for purposes of determining the Percentage Equity Ownership of any Person (x) that owns Warrants, the Warrants held by such Person shall be treated as exercised, but the Warrants held by other Persons shall not be treated as exercised or (y) that has received an award pursuant to an Equity Incentive Plan, such award shall be treated as exercised, but the awards held by other Persons shall not be treated as exercised.

“Permitted Transferee” means, with respect to any Member, any general or limited partner, member, stockholder or Affiliate of such Member (other than any “portfolio company”, as such term is customarily used among institutional investors).

“Person” means any individual, partnership, joint venture, limited liability company, firm, corporation, unincorporated association or organization, trust or other entity or any group of such “Persons” having a formal or informal understanding among themselves to make a “coordinated acquisition” of Company Securities within the meaning of Treasury Regulation section 1.382-3(a)(1) or who are otherwise treated as an “entity” within the meaning of Treasury Regulation section 1.382-3(a), and shall include any successor (by merger or otherwise) of any such entity or group.

“Person engaged in the Business” means, as of a particular date of determination, any Person (other than the Company and its Subsidiaries) deriving, during the immediately preceding twelve (12) months, fifty percent (50%) or more of such Person’s and its Affiliates’ consolidated net revenues from services or products similar to those provided by, or that could reasonably be considered to compete with, the Business.

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“Plan” means that certain Joint Prepackaged Chapter 11 Plan of Reorganization of Internap Corporation and its Affiliated Debtors and Debtors in Possession, dated as of March 16, 2020.

“Prohibited Distributions” means any dividends or other distributions that were received by the Purported Transferee from the Company with respect to the Excess Securities.

“Prohibited Transfer” means any purported Transfer of Company Securities to the extent that such Transfer is prohibited and/or void pursuant to this Agreement.

“Prospectus” means the prospectus included in a Registration Statement (including a prospectus that includes any information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A), all amendments and supplements to the Prospectus, including post-effective amendments, all material incorporated by reference or deemed to be incorporated by reference in such Prospectus and any Issuer Free Writing Prospectus.

“Public Offering” means any sale to the public pursuant to a public offering registered (other than a registration effected solely to implement an employee benefit plan, a dividend reinvestment plan, or similar plans, or a transaction to which Rule 145 is applicable) under the Securities Act.

“Qualified Member” means, as of a particular date of determination, one or more Members who beneficially own in the aggregate ten percent (10%) or more of the outstanding Registrable Securities as of such date.

“Registrable Securities” means Units and Reclassified Securities.  As to any particular Registrable Securities, such securities shall not be Registrable Securities when (a) a Registration Statement registering such Registrable Securities under the Securities Act has been declared effective and such Registrable Securities have been Transferred by the Member thereof pursuant to such effective Registration Statement, (b) such securities are Transferred pursuant to Rule 144, (c) such securities cease to be outstanding, or (d) such securities are held by a Member who, together with its Affiliates, holds less than one percent (1%) of the outstanding equity securities of the Company and in the hands of such Member all such securities may be sold pursuant to Rule 144 without volume or manner of sale limitations.  Notwithstanding the foregoing, the Warrants shall not be Registrable Securities.

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“Registration Expenses” means: (a) all registration, qualification and filing fees and expenses (including fees and expenses (i) of the Commission or FINRA, (ii) incurred in connection with the listing of the Registrable Securities on the Trading Market, and (iii) incurred in order to comply with applicable state securities or “blue sky” laws (including reasonable fees and disbursements of counsel for the underwriters in connection with “blue sky” qualifications of the Registrable Securities)); (b) printing expenses (including expenses of printing certificates for the Company’s units and of printing Prospectuses); (c) analyst or investor presentation or road show expenses of the Company and the underwriters, if any; (d) messenger, telephone and delivery expenses; (e) fees and disbursements of counsel (including any local counsel), auditors and accountants for the Company (including the expenses incurred in connection with “comfort letters” required by or incident to such performance and compliance); (f) the reasonable fees and disbursements of underwriters to the extent customarily paid by issuers or sellers of securities (including, if applicable, the fees and expenses of any “qualified independent underwriter” and its counsel) that are required to be retained in accordance with the rules and regulations of FINRA and the other reasonable fees and disbursements of underwriters (including reasonable fees and disbursements of counsel for the underwriters) in connection with any FINRA qualification; (g) fees and expenses of any special experts retained by the Company; (h) Securities Act liability insurance, if the Company so desires such insurance; (i) reasonable fees and disbursements of one counsel (along with any reasonably necessary local counsel) representing all Members participating in such registration mutually agreed by Members of a Majority of Included Registrable Securities participating in such registration; and (j) fees and expenses payable in connection with any ratings of the Registrable Securities, including expenses relating to any presentations to rating agencies.  For the avoidance of doubt, and notwithstanding anything herein to the contrary, “Registration Expenses” shall not include any Selling Expenses, which shall be the sole responsibility of the Member holding the related Registrable Securities.

“Registration Statement” means a registration statement of the Company filed with or to be filed with the Commission under the Securities Act and other applicable law, including any Prospectus, amendments and supplements to each such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.

“Representatives” of a Person means, as applicable, such Person’s partners, shareholders, members, directors, officers, employees, agents, counsel, accountants, consultants, investment advisers or other professionals or representatives, or its Affiliates or wholly-owned Subsidiaries.

“Restriction Release Date” means the earliest of: (i) the date that is one day after the third (3^rd) anniversary of the Reorganization Date; (ii) the repeal, amendment or modification of section 382 of the Code (and any comparable successor provision) in such a way as to render the restrictions imposed by section 382 of the Code no longer applicable to the Company; (iii) the beginning of a taxable year of the Company (or any successor thereof) in which no Tax Benefits are available; (iv) the date selected by the Board if the Board determines that the limitation amount imposed by section 382 of the Code as of such date in the event of an “ownership change” of the Company (as defined in section 382 of the Code) would not be materially less than the net operating loss carryforwards or “net unrealized built-in loss” (within the meaning of section 382 of the Code) of the Company; and (v) the date selected by the Board if the Board determines that it is in the best interests of the Members for the restrictions set forth in Section 8.1(e) to be removed or released.

“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

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“Rule 145” means Rule 145 promulgated by the Commission pursuant to the Securities Act, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

“Rule 158” means Rule 158 promulgated by the Commission pursuant to the Securities Act, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

“Rule 405” means Rule 405 promulgated by the Commission pursuant to the Securities Act, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

“Rule 430A” means Rule 430A promulgated by the Commission pursuant to the Securities Act, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

“Rule 433” means Rule 433 promulgated by the Commission pursuant to the Securities Act, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

“Sale of the Company” means (i) a sale, disposition, amalgamation, arrangement, merger, consolidation, recapitalization, reorganization or other similar transaction or series of related transactions in which the holders of the Company Securities immediately prior to such transaction(s) would hold, immediately after such transaction(s), less than 50% of the combined voting power or beneficial interest of the surviving entity or (ii) a sale of assets constituting all or substantially all of the assets of the Company and its Subsidiaries.

“Seasoned Issuer” means an issuer eligible to use Form S-3 under the Securities Act and who is not an “ineligible issuer” as defined in Rule 405.

“Securities Act” means the Securities Act of 1933, as amended.

“Selling Expenses” means all underwriting fees, discounts, selling commissions and stock transfer taxes applicable to the sale of Registrable Securities and related legal and other fees of a Member not included within the definition of Registration Expenses.

“state” means any state within the United States or the District of Columbia.

“Subsidiary” means, with respect to any Person, (i) a corporation a majority of whose outstanding shares of capital stock or other Equity Securities with voting power, under ordinary circumstances, to elect directors is at the time, directly or indirectly, owned by such Person, by one or more subsidiaries of such Person or by such Person and one or more subsidiaries of such Person, and (ii) any other Person (other than a corporation) in which such Person, one or more subsidiaries of such Person or such Person and one or more subsidiaries of such Person, directly or indirectly, at the date of determination thereof, has (x) at least a majority ownership interest or (y) the power to elect or direct the election of a majority of the directors or other governing body of such Person.

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“Substantial Member” means a Person with a Percentage Equity Ownership of 4.98% or more.

“Substituted Member” means any Person that has been admitted to the Company as a Member pursuant to Section 8.6 by virtue of such Person’s (a) receiving all or a portion of a Membership Interest from a Member or its Assignee (and not from the Company) and (b) having complied with the requirements of Section 8.6.

“Successor in Interest” means, with respect to any Member, any (a) trustee, custodian, receiver or other Person acting in any Bankruptcy or reorganization proceeding with respect to, (b) assignee for the benefit of the creditors of, (c) trustee or receiver, or current or former officer, director or partner, or other fiduciary acting for or with respect to the dissolution, liquidation or termination of, or (d) other transferee, executor, administrator, committee, legal representative or other successor or assign of, such Member, whether by operation of law or otherwise (including any Person acquiring (whether by merger, consolidation, sale, exchange or otherwise) all or substantially all of the assets or Equity Securities of such Member).

“Tax Benefit” means the net operating loss carryovers, capital loss carryovers, general business credit carryovers, alternative minimum tax credit carryovers and foreign tax credit carryovers, as well as any loss or deduction attributable to a “net unrealized built-in loss” within the meaning of section 382 of the Code, of the Company or any direct or indirect subsidiary thereof.

“Third Party” means any Person other than the Company or its Subsidiaries.

“Trading Market” means the principal national securities exchange in the United States on which Registrable Securities are (or are to be) listed.

“Transfer” means the acquisition or disposition, directly or indirectly, of the beneficial ownership of Company Securities by any means, including, without limitation, (i) the creation or grant of any pledge (or other security interest), right or option with respect to Company Securities, including an option within the meaning of Treasury Regulation section 1.382-4(d)(8), (ii) the exercise of any such pledge, right or option, (iii) any sale, assignment, conveyance or other disposition, or (iv) any other transaction treated under the applicable rules under section 382 of the Code as a direct or indirect acquisition or disposition (including the acquisition of an ownership interest in a Substantial Member).

“Treasury Regulations” means the income tax regulations, including temporary regulations and, to the extent taxpayers are permitted to rely on them, proposed regulations, promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“Warrants” means the warrants issued pursuant to that certain Warrant Agreement, dated as of the Reorganization Date, by and between the Company and the warrant agent party thereto, representing the right to initially acquire up to 1,120,836 Common Units as of the Reorganization Date.

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“WKSI” means a “well known seasoned issuer” as defined under Rule 405 and which (a) is a “well-known seasoned issuer” under paragraph (1)(i)(A) of such definition or (b) is a “well-known seasoned issuer” under paragraph (1)(i)(B) of such definition and is also a Seasoned Issuer.

1.2        Interpretative Matters.  Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neutral forms; (b) references to Sections, Schedules, Exhibits, paragraphs and clauses refer to Sections, Schedules, Exhibits paragraphs and clauses of this Agreement; (c) the terms “include”, “includes”, “including” or words of like import shall be deemed to be followed by the words “without limitation”; (d) the terms “hereof”, “herein” or “hereunder” refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) the term “or” is not exclusive and shall have the inclusive meaning of “and/or”; (f) defined terms herein will apply equally to both the singular and plural forms and derivative forms of defined terms will have correlative meanings; (g) references to any law or statute shall be deemed to refer to such law or statute as amended or supplemented from time to time and shall include all rules and regulations and forms promulgated thereunder, and references to any law, rule, form or statute shall be construed as including any legal and statutory provisions, rules or forms consolidating, amending, succeeding or replacing the applicable law, rule, form or statute; (h) references to any Person include such Person and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns; (i) references to “days” are to calendar days unless otherwise indicated; (j) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded; (k) references to “writing” or “written” shall include electronic mail; (l) all references to $, currency, monetary values and dollars set forth herein means United States dollars; and (m) all references to “outstanding units” shall include only those units issued and outstanding as of the particular date of reference and, for the avoidance of doubt, shall not be calculated on a fully-diluted basis unless expressly required to be so calculated.  Each party acknowledges that it was actively involved in the negotiation and drafting of this Agreement and that no law or rule of construction shall be raised or used in which the provisions of this Agreement shall be construed in favor or against any party because one is deemed to be the author thereof.

ARTICLE II

ORGANIZATIONAL MATTERS

2.1         Formation of the Company.  The Members hereby confirm that they have been admitted to the Company as Members of the Company and agree to their status as Members of the Company as set forth herein.  The Board is authorized to execute, deliver and file any other certificates, notices or documents (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in any jurisdiction in which the Company may wish to conduct business.

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2.2         Effect of Agreement.  The Members hereby execute this Agreement for the purpose of continuing the affairs of the Company and the conduct of its business in accordance with the provisions of the Delaware Act.  The Members hereby agree that during the term of the Company, the rights and obligations of the Members with respect to the Company will be determined in accordance with the terms and conditions of this Agreement and the Delaware Act.  To the extent that the rights, powers, duties, obligations and liabilities of any Members are different by reason of any provision of this Agreement than they would be in the absence of such provision, this Agreement shall, to the extent permitted by the Delaware Act, control.

2.3         Name.  The name of the Company is “Internap Holding LLC” or such other name or names as the Board may designate from time to time and reflect in a filing with the Secretary of State of the State of Delaware in accordance with the Delaware Act.  The Board shall promptly notify each Member in writing of any change in the Company’s name.

2.4         Powers; Purposes.

(a)          General Powers.  The Company shall have all of the powers of a Delaware limited liability company, including the power to engage in any lawful act or activity for which limited liability companies may be organized under the Delaware Act.

(b)          Purposes.  The Company is formed for the object and purpose of, and the nature of business to be conducted and promoted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Delaware Act.  The Company may engage in any and all activities in which limited liability companies formed in the State of Delaware under the Delaware Act and may participate and to do all things that are related or incidental to the foregoing or necessary, advisable, appropriate or expedient to accomplish the foregoing.

(c)          Limitation.  Notwithstanding anything herein to the contrary, nothing set forth herein shall be construed as authorizing the Company to possess any purpose or power, or to do any act or thing, forbidden by law to a limited liability company organized under the laws of the State of Delaware.

(d)          Company Action.  Subject to compliance by the Board with the provisions of this Agreement and except as prohibited by applicable law, (i) the Company may, upon approval by the Board enter into and perform any and all documents, agreements and instruments, all without any further act, vote or approval of any Member, and (ii) the Board may authorize any Person (including any Member or its Affiliates or their respective officers) to enter into and perform any documents on behalf of the Company.

2.5         Principal Office; Registered Office.  The Company shall maintain an office and principal place of business at 12120 Sunset Hills Road, Suite 330, Reston, Virginia 20190, or at such other place or places in the United States as the Board may from time to time designate.  The Board shall promptly notify each Member in writing of any change to the Company’s principal place of business.  The registered office of the Company in the State of Delaware shall be c/o Registered Agent Solutions, Inc. 9 E. Loockerman Street, Suite 311, City of Dover, County of Kent, Delaware 19901 and the registered agent shall be Registered Agent Solutions, Inc., or, in each case, as the Board may otherwise designate from time to time.  The Company may have such other offices as the Board may designate from time to time.

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2.6         Term.  The term of the Company commenced at the time the Certificate was filed with the office of the Secretary of State of the State of Delaware and shall continue until dissolution of the Company in accordance with the provisions of Article IX.  The existence of the Company as a separate legal entity shall continue until the Certificate is cancelled in accordance with the Delaware Act.

2.7         Foreign Qualification.  The Board shall cause to be taken all actions as may be reasonably necessary to perfect and maintain the status of the Company as a limited liability company or similar type of entity under the laws of any other jurisdictions in which the Company engages in business.

2.8         Company Status.  The Members intend that the Company not be a joint venture, and that no Member be a joint venturer of any other Member by virtue of this Agreement for any purpose, and neither this Agreement nor any other document entered into by the Members relating to the subject matter hereof shall be construed to suggest otherwise.

ARTICLE III

ADMISSION OF MEMBERS; CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS

3.1         Capitalization.

(a)          Units; Initial Capitalization.  Each Member’s interest in the Company and the right to vote, if any, on certain Company matters as provided in this Agreement shall be represented by units of limited liability company interest (each a “Unit”).  The Company shall initially have one (1) authorized type of Units, consisting of the Common Units.  Subject to the terms and conditions of any preferred class or series of Company Securities, only Common Units shall be entitled to vote on matters presented to the Members for approval.  The aggregate number of Common Units authorized for issuance shall be 57,500,000.  The ownership by a Member of Units shall invest such Member with the Economic Interest therein (except to the extent Transferred to an Assignee or another Member as permitted by this Agreement) and the other rights set forth in this Agreement.  For purposes of this Agreement, Units held by the Company or any of its Subsidiaries shall be deemed not to be outstanding.  The Company may issue fractional Units, and all Units shall be rounded to the third decimal place.  To the extent that the Company reacquires any Units or other Company Securities by purchase, redemption or otherwise, such reacquired Units or Company Securities shall not be cancelled unless the Board determines otherwise and may be reissued, and pending their reissuance, shall be treated as authorized but unissued Units or Company Securities. As of the date hereof, each of the Members has been issued the number of Units as indicated on the Schedule of Members, attached hereto, as may be amended from time to time.

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(b)          Issuance of Additional Units.  Subject to the express provisions of this Agreement, including Section 8.5, the Board shall have the right to cause the Company to issue at any time after the Reorganization Date, and for such amount and form of consideration as the Board may determine, (i) additional Units (of existing classes or series or new classes or series, including new classes or series that have economic rights superior to existing classes or series) or other Company Securities (including creating other classes or series thereof having such powers, designations, preferences and rights as may be determined by the Board), (ii) obligations, evidences of indebtedness or other securities or interests convertible or exchangeable into Units or other Company Securities and (iii) warrants, options or other rights to purchase or otherwise acquire Units or other Company Securities, and in connection therewith, and, subject to the provisions of Section 11.1 and this Section 3.1(b), the Board shall have the power to make amendments to this Agreement as the Board in its sole and absolute discretion deems necessary or appropriate to give effect to such additional issuance.

(c)          Recapitalization or Exchange of Units.  Any recapitalization or exchange of Units (by Unit split or otherwise) or combination (by reverse Unit split or otherwise) of any particular class or series of outstanding Units shall be made contemporaneously and proportionately to all classes and series of outstanding Units.

3.2         Admission of Members; Additional Members.

(a)          Schedule of Units; Schedule of Members.  The Company shall maintain and keep at its registered office (i) a Schedule of Units on which it shall set forth the aggregate number of Units of each type, the distribution threshold (if any) in respect of such Units and the aggregate amount of cash Capital Contributions that have been made by each Member and the Fair Market Value of any property other than cash contributed by each Member with respect to the Units (including, if applicable, a description and the amount of any liability assumed by the Company or to which contributed property is subject), and (ii) a Schedule of Members on which it shall set forth the name and address of each Member and the type of Units held by each Member.  An updated copy of the Schedule of Members shall be made available to any Member upon written request to the Company; provided, that certain confidential information or sensitive information may, in the reasonable and good-faith determination of the Board, be redacted from the information provided to any Member and the Schedule of Units shall only be available to any holders of Common Units.

(b)          Additional Members.  Subject to the express provisions of this Agreement, the Board shall have the right to admit Additional Members.  A Person may be admitted to the Company as an Additional Member upon compliance with the express provisions of this Agreement and upon furnishing to the Board (i) a joinder agreement, in form satisfactory to the Board, pursuant to which such Person agrees to be bound by all the terms and conditions of this Agreement, and (ii) such other documents or instruments as may be necessary or appropriate to effect such Person’s admission as a Member (including entering into an investor representation agreement or such other documents as the Board may deem appropriate).  Such admission shall become effective on the date on which the Board determines that such conditions have been satisfied and when any such admission is shown on the books and records of the Company.  Upon the admission of an Additional Member by the Board, the Schedule of Members attached hereto shall be updated by the Board to reflect the name, address and Units and other interests in the Company of such Additional Member.

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(c)          The Company shall not issue non-voting Equity Securities; provided, however, that the foregoing restriction shall (i) have no further force and effect beyond that required under Section 1123(a)(6) of Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”), (ii) only have such force and effect for so long as Section 1123 of the Bankruptcy Code is in effect and applicable to the Company, and (iii) in all events may be amended or eliminated in accordance with applicable law as from time to time may be in effect.  The prohibition on the issuance of non-voting Equity Securities is included in this Agreement in compliance with Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. § 1123(a)(6)).

3.3         No Withdrawal.  No Person shall be entitled to withdraw any part of such Person’s Capital Contributions or to receive any Distribution from the Company, except as expressly provided herein.

3.4         Loans From Members.  Loans by Members to the Company shall not be considered Capital Contributions.  The amount of any such loans shall be a debt of the Company to such Member and shall be payable or collectible in accordance with the terms and conditions upon which such loans are made.

3.5         No Right of Partition.  No Member shall have the right to seek or obtain partition by court decree or operation of law of any property of the Company or any of its Subsidiaries or the right to own or use particular or individual assets of the Company or any of its Subsidiaries, or, except as expressly contemplated by this Agreement, be entitled to Distributions of specific assets of the Company or any of its Subsidiaries.

3.6         Non-Certification of Units; Legend; Units Are Securities.  Units shall be issued in non-certificated form; provided, that the Board may cause the Company to issue certificates to a Member representing the Units held by such Member.  If any Unit certificate is issued, then such certificate shall bear a legend substantially in the following form, together, if applicable, with the legend set forth in Section 8.1(e)(v) and any applicable securities law legends:

THIS CERTIFICATE EVIDENCES A COMMON UNIT REPRESENTING AN INTEREST IN INTERNAP HOLDING LLC.

THE INTEREST IN INTERNAP HOLDING LLC REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN THAT CERTAIN LIMITED LIABILITY COMPANY AGREEMENT OF INTERNAP HOLDING LLC, DATED AS OF MAY 8, 2020 BY AND AMONG INTERNAP HOLDING LLC AND EACH OF THE MEMBERS FROM TIME TO TIME PARTY THERETO, AS THE SAME MAY BE AMENDED FROM TIME TO TIME.

ARTICLE IV

DISTRIBUTIONS

4.1         Distributions.  The Board shall have sole and absolute discretion regarding the amount and timing of Distributions to the Members, and, subject to the provisions of Section 4.4 and to the terms and conditions of any preferred class or series of Company Securities, all such Distributions shall be made pro rata in accordance with the number of Common Units then held by each Member.

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4.2         Successors.  For purposes of determining the amount of Distributions, each Member shall be treated as having made the Capital Contributions and as having received the Distributions made to or received by its predecessors in respect of any of such Member’s Units.

4.3         Distributions In-Kind.  To the extent that the Company distributes property in-kind to the Members, the Company shall be treated as making a Distribution pursuant to Section 4.1 equal to the Fair Market Value of such property for purposes of Section 4.1 and such property shall be treated as if it were sold in a hypothetical sale for an amount equal to its Fair Market Value.

4.4         Right of Set-Off.  As security for any obligations of a Member to the Company under any provisions of this Agreement or any other agreement between such Member, on the one hand, and the Company and/or its Subsidiaries, on the other hand, the Company shall have (and each Member hereby grants to the Company) a right to set off any such amounts against any Distributions to such Member.  In addition, whenever the Company is to pay any sum to any Member or any Affiliate or related Person thereof pursuant to the terms of this Agreement, any amounts that such Member or such Affiliate or related Person owes to the Company under any promissory note issued to the Company as partial payment for any Units of the Company may be deducted from that sum before payment.

4.5         Restriction.  Notwithstanding any provision to the contrary in this Agreement, the Company shall not make a distribution to any Member on account of its interest in the Company to the extent that such distribution would violate the Delaware Act or other applicable law.

ARTICLE V

RIGHTS AND DUTIES OF MEMBERS

5.1         Power and Authority of Members.  Unless delegated such power in accordance with Section 6.15, no Member shall, in its capacity as such, have the authority or power to act for or on behalf of the Company in any manner, to do any act that would be (or could be construed as) binding on the Company, or to make any expenditures on behalf of the Company, and the Members hereby consent to the exercise by the Board of the powers and rights conferred on it by applicable law and by this Agreement.

5.2         Voting Rights.  Except as otherwise specifically set forth in this Agreement, Members holding Common Units shall vote together as a single class, and each Member shall be entitled to one vote for each Common Unit held by such Member on all matters to be voted upon by the Members under this Agreement or the Delaware Act.

5.3         Liability of Members.

(a)          No Personal Liability.  Except as otherwise required by the Delaware Act or as expressly set forth in this Agreement (including in Sections 5.3(b) and 9.3), no Member shall have any personal liability whatsoever in such Member’s capacity as a Member, whether to the Company, to any of the other Members, to the creditors of the Company or to any other Third Party for the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise (including those arising as a member or an equityholder, an owner or a shareholder of another Person).  Each Member shall be liable only to make such Member’s Capital Contribution to the Company, if applicable, and any other payments provided for expressly herein or required by the Delaware Act.

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(b)          Return of Distributions.  Under the Delaware Act, a Member may, under certain circumstances, be required to return amounts previously distributed to such Member.  It is the intent of the Members that no Distribution to any Member pursuant to Article IV or Article IX shall be deemed to constitute money or other property paid or distributed in violation of the Delaware Act, and the Member receiving such Distribution shall not be required to return to any Person any such money or property, except as otherwise expressly set forth herein or the Delaware Act.  If, however, it is required pursuant to the Delaware Act or any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, any Member is obligated to make any such payment, such obligation shall be the obligation of such Member and not of the other Members.

5.4         Performance of Duties; Conflicts of Interest.

(a)          In performing its, his or her duties, each of the Members shall be entitled to rely in good faith on the provisions of this Agreement and on information, opinions, reports or statements (including financial statements and information, opinions, reports or statements as to the value or amount of the assets, liabilities, profits or losses of the Company and its Subsidiaries) of the following other Persons or groups: (i) one or more officers or employees of such Member or the Company or any of its Subsidiaries, (ii) any attorney, independent accountant or other Person employed or engaged by such Member or the Company or any of its Subsidiaries, or (iii) any other Person who has been selected with reasonable care by or on behalf of such Member or the Company or any of its Subsidiaries, in each case, as to matters which such relying Person reasonably believes to be within such other Person’s professional or expert competence.

(b)          On any matter involving a conflict of interest not provided for elsewhere in this Agreement, each Member shall be guided by its reasonable judgment as to the best interests of the Company and its Subsidiaries and shall take such actions as are determined by such Person to be necessary or appropriate to ameliorate such conflict of interest.

5.5         Member Meetings and Actions.

(a)          Annual Meetings.  Unless directors are elected by written consent in lieu of an annual meeting, an annual meeting of Members shall be held for the election of directors and to transact such other business as may properly be brought before the meeting.  The date of each annual meeting of Members shall be no later than thirteen (13) months after the date of the immediately preceding annual meeting (or, in the case of the first annual meeting, no later than thirteen (13) months after the Reorganization Date but no earlier than a date in calendar year 2021).

(b)          Action by Written Consent.  Members may take any action required or permitted to be taken at any meeting of the Members without a meeting, if Members having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all Units entitled to vote thereon were present and voted consent in writing or electronic submission; provided, that prompt notice must be given to all Members of the taking of such action without a meeting when such action is taken by less than unanimous written consent.

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(c)          Special Meetings.

(i)          Special meetings of the Members may be called by the Board or by Members holding not less than twenty-five percent (25%) of the voting power of all outstanding Units (the “Requisite Percentage”), subject to the following: in order for a special meeting requested by one or more Members (a “Member Requested Special Meeting”) to be called, one or more written requests for a special meeting (each a “Special Meeting Request”), stating the purpose of the special meeting and the matters proposed to be acted upon thereat must be signed and dated by the Requisite Percentage of Members (or their duly authorized agents), and must be delivered to the Board at the principal executive offices of the Company and must set forth: (i) in the case of any matter (other than a director nomination) proposed to be conducted at such Member Requested Special Meeting, the information required by Section 5.5(f); and (ii) an agreement by the requesting Member(s) to notify the Board immediately in the case of any disposition prior to the record date for the Member Requested Special Meeting of Units owned of record and an acknowledgement that any such disposition shall be deemed a revocation of such Special Meeting Request to the extent such disposition causes the Requisite Percentage to no longer be met.

(ii)         A Member Requested Special Meeting shall be held at such date and time as may be fixed by the Board; provided, however, that the Member Requested Special Meeting shall be called for a date not less than twenty (20) nor more than sixty (60) calendar days after the Company receives a Special Meeting Request from the Requisite Percentage as provided in Section 5.5(c)(i).

(d)          Quorum.  The presence, in person or by proxy, of the holders of a majority of the voting power of the outstanding Units generally entitled to vote at a meeting of Members shall constitute a quorum for the transaction of business.  If, however, such quorum shall not be present or represented at any meeting of the Members, the chairperson of the meeting or a majority in voting interest of the Members present in person or represented by proxy shall adjourn the meeting, without notice other than announcement at the meeting, until a quorum shall be present or represented.  At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally notified.

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(e)          Notice of Meetings and Adjourned Meetings; Waivers of Notice.

(i)          Whenever Members are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which Members and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called.  Such notice shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each Member entitled to vote at such meeting.  When a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time, place, if any, and the means of remote communications, if any, by which Members and proxy holders may be deemed to be present in person and vote at such meeting, are announced at the meeting at which the adjournment is taken.  At the adjourned meeting, the Company may transact any business which might have been transacted at the original meeting.  If the adjournment is for more than thirty (30) days, or after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Member entitled to vote at the meeting in accordance with this Section 5.5(e).

(ii)         A written waiver of any such notice signed by the Person entitled thereto whether before or after the time of the meeting stated therein, shall be deemed equivalent to notice.  Attendance of a Person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.  Business transacted at any special meeting of Members shall be limited to the purposes stated in the notice.

(f)           Notice of Business.

(i)          At any annual meeting of the Members, only such business shall be conducted as shall have been brought before the meeting (a) by or at the direction of the Board or (b) by any Member who is a Member at the time of giving of the notice provided for in this Section 5.5(f), who shall be entitled to vote at such meeting and who complies with the notice procedures set forth in this Section 5.5(f).  For business to be properly brought before a Member meeting by a Member, the Member must have given timely notice thereof in writing to the Board.  To be timely, a Member’s notice in connection with an annual meeting of the Members shall be delivered to or mailed and received at the principal executive offices of the Company not less than sixty (60) days nor more than ninety (90) days prior to the first (1st) anniversary of the preceding year’s annual meeting of Members; provided, however, that in the case of the first annual meeting after the date hereof, and in the event that the date of the annual meeting is advanced more than thirty (30) days prior to such anniversary date, then to be timely such notice must be received by the Company no later than the later of seventy (70) days prior to the date of the meeting and the tenth (10th) day following the day on which either (x) public announcement of the date of the meeting was made or (y) the Company shall have provided notice thereof to the Members in a manner permitted by the Delaware Act, whichever occurs earlier.  A Member’s notice to the Board shall set forth as to each matter the Member proposes to bring before the meeting:

(A)          a brief description of the business desired to be brought before the meeting and the reasons for conducting such business at the meeting;

(B)          the name and address, as they appear on the Company’s books, of the Member proposing such business and any Member Associated Person;

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(C)          (x) the class and number of Units of the Company which are held of record or are beneficially owned by such Member or any Member Associated Person with respect to the Company’s securities and (y) any derivative positions held or beneficially held by the Member and any Member Associated Person and whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of, or any other agreement, arrangement or understanding has been made, the effect or intent of which is to increase or decrease the voting power of, such Member or any Member Associated Person with respect to the Company’s securities; and

(D)          any material interest of the Member or any Member Associated Person in such business.

(ii)         Notwithstanding anything to the contrary, no business shall be conducted at a Member meeting except in accordance with the procedures set forth in Section 5.5(f).  The chairperson of the meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with this Agreement, and if he or she should so determine, he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.  There shall be no limit on the number of matters that can be properly brought at a meeting.

5.6         Approving Certain Matters.  Notwithstanding anything to the contrary, the affirmative vote of Members holding not less than a majority of the outstanding Common Units shall be required prior to the Company or any or its Subsidiaries taking any of the following actions; provided, however, that (i) with respect to clauses (c) or (j), any Sale of the Company shall require the affirmative vote of Members holding not less than sixty percent (60%) of the outstanding Common Units and (ii) with respect to clause (o), the relevant agreement or transaction shall require the affirmative vote of the Members holding not less than a majority of the outstanding Common Units held by the Members other than the Member(s) that is, or is a related party of, the Person with whom the Company or any of its Subsidiaries is proposing to enter into such agreement or transaction:

(a)          any amendment to the Certificate;

(b)          the engagement by the Company and/or any of its Subsidiaries in any business that is materially different from that described in the then-current annual business plan of the Company;

(c)          the voluntary recapitalization, reorganization, bankruptcy, liquidation and/or dissolution of the Company and/or any of its Subsidiaries;

(d)          any material change to the accounting methods or policies of the Company and/or any of its Subsidiaries other than any changes to such accounting methods or policies that are required by GAAP, or the appointment or removal of the Company’s independent auditor;

(e)          the making or changing of any tax election that would cause the Company to be classified as an entity other than a corporation for U.S. federal income tax purposes;

(f)          the declaration, payment or accrual of any dividend or distribution by the Company;

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(g)          other than Units issued pursuant to any equity incentive or similar plan of the Company, the redemption or repurchase of any Units;

(h)          the entering into of any compensation agreement or benefit plan, including any equity incentive or similar plan of the Company, and any material amendments thereto other than (i) any such compensation agreement with any non-executive employee whose total compensation is less than $150,000 per year and (ii) any awards under equity incentive plans in effect as of, or as a result of, the Effective Date (as defined in the Plan) of the Plan, which awards are approved by the Board or a committee thereof; it being understood that any amendment shall be deemed a “material amendment” if it would cause the pool of equity securities issued or issuable pursuant to such agreements or plans to exceed the amount allocated for the initial equity incentive plan of the Company adopted on or around the Reorganization Date;

(i)          the incurrence by the Company and/or any of its Subsidiaries of indebtedness or the refinancing of any existing indebtedness, in each case, with a principal amount that (i) when taken together with all previously incurred indebtedness that remains outstanding, causes the aggregate amount of indebtedness of the Company and its Subsidiaries to exceed $332,500,000 or (ii) when taken together with indebtedness incurred, or refinancing of existing indebtedness, after the Reorganization Date (other than indebtedness incurred under credit facilities entered into on the Reorganization Date), exceeds $50,000,000 in the aggregate at any time outstanding;

(j)          other than (i) transactions for a purchase price of less than $500,000 individually or $1,000,000 in the aggregate together with all other transactions within such fiscal year and (ii) pursuant to a Drag-Along Sale, in one (1) transaction or a series of related transactions, the entering into of any agreement with respect to or the consummation of (A) any merger or similar combination or any joint venture between the Company or any of its Subsidiaries, on the one hand, and any third party, on the other hand, or (B) any acquisition of, or investment in, the assets of another Person (including the equity securities of another Person), or the transfer or disposition of assets of the Company and its Subsidiaries other than (x) transfers or dispositions of obsolete assets or equipment or (y) acquisitions, transfers or dispositions of supplies, inventory or equipment by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice; provided, that the value of any non-cash consideration to be paid or received in connection with the foregoing shall be the Fair Market Value of such consideration;

(k)          the completion of an Initial Public Offering or other listing of any securities, in each case, by the Company or any of its Subsidiaries;

(l)           the voluntary registration of any class of security of the Company under Section 12 of the Exchange Act, or the taking of any other action which would, or would reasonably be expected to, subject the Company or any of its securities to reporting obligations under Section 15(d) of the Exchange Act;

(m)         the issuance of any equity securities of the Company and/or any of its Subsidiaries, other than (i) with respect to the Company, any equity securities issued pursuant to the initial equity incentive plan of the Company adopted on or around the Reorganization Date or (ii) with respect to any Subsidiary of the Company, the issuance of equity securities to the Company or another wholly-owned Subsidiary of the Company;

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(n)          any increase or decrease in the size of the Board; and

(o)          other than (A) commercial transactions in the ordinary course of business consistent with past practice on arms’ length terms involving consideration with a value less than $500,000 individually or $1,000,000 in the aggregate and (B) the issuance of securities pursuant to, and in accordance with, Section 8.5, entering into any transaction with (i) a Member, director or officer of the Company or any of its Subsidiaries, (ii) any Person in which one or more Members, directors or officers of the Company or any of its Subsidiaries owns, directly or indirectly, individually or in the aggregate, five percent (5.0%) or more of the outstanding equity securities of such Person or (iii) any “affiliate”, “associate” or member of the “immediate family” (as such terms are respectively defined in rules and regulations under the Exchange Act) of any Person described in the foregoing clauses (i) or (ii).

ARTICLE VI

MANAGEMENT OF THE COMPANY

6.1         Management Authority.

(a)          The business and affairs of the Company shall be managed by or under the direction of a Board of one or more directors (the “Board”) comprised of natural persons having the authority and duties set forth in this Agreement.  Except as otherwise provided in this Agreement and subject to compliance by the Board with any provision of this Agreement, management of the Company shall be vested exclusively in the Board, and the Board shall have full control over the business, assets and affairs of the Company.  The Board shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes of the Company described herein, including all powers, statutory or otherwise, possessed by managers of a limited liability company under the laws of the State of Delaware.  Each director is hereby designated a “manager” of the Company within the meaning of the Delaware Act.  Except as otherwise required by law, approval of any action by the Board in accordance with this Agreement shall constitute approval of such action by the Company.  Except as otherwise provided in this Agreement, no Member or director shall have the authority to bind the Company.

(b)          Except as otherwise set forth in this Agreement, all matters, including matters concerning (i) Distributions and the return of capital among the Members, including the taxes thereon, and (ii) financial and accounting procedures and determinations, and other determinations not specifically and expressly provided for by the terms of this Agreement, shall be determined in good faith by the Board, acting reasonably in accordance with this Agreement.

6.2         Board Composition.

(a)          Number; Appointment.  The number of seats on the Board shall initially be seven (7) and may be increased or decreased from time to time by resolution of the Board; provided, that, for so long as any Member qualifies as a “Nominating Member” pursuant to the terms and subject to the conditions set forth in this Agreement, the number of seats on the Board shall be seven (7).  The Board shall be comprised of the following individuals, each of whom shall be elected and otherwise continue to serve as a director of the Board in accordance with the terms and conditions of this Agreement: (i) one (1) individual designated by the AG Member so long as the AG Member holds a number of Designated Units equal to or greater than the Minimum Threshold; (ii) one (1) individual designated by the BlackRock Member so long as the BlackRock Member holds a number of Designated Units equal to or greater than the Minimum Threshold; (iii) one (1) individual designated by the BSP Member so long as the BSP Member holds a number of Designated Units equal to or greater than the Minimum Threshold; (iv) one (1) individual designated by the Carlyle Member so long as the Carlyle Member holds a number of Designated Units equal to or greater than the Minimum Threshold (each director designated pursuant to clauses (i), (ii), (iii) and (iv), a “Representative Director”); (v) one (1) individual designated by the affirmative vote of equityholders owning a majority of the outstanding Common Units (the “Common Director”), who shall initially be Michael Sicoli as the Chief Executive Officer of the Company; and (vi) a number of individuals necessary to fill the remaining seats of the Board, who shall be Independent Directors (the “General Directors”) and designated by the affirmative vote of equityholders owning a majority of the outstanding Common Units.

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(b)          Term.  The individuals elected as the initial General Directors shall, subject to each such individual’s resignation or removal, serve as directors on the Board until the annual meeting of the Members in 2022, and thereafter, shall, subject to each such individual’s resignation or removal, serve from one annual meeting of the Members until the next.  Each of the initial Representative Directors and the initial Common Director shall serve until the removal or resignation of such Representative Director or Common Director, as applicable, in accordance with this Agreement.

(c)          Minimum Thresholds.  If, at any time, any Nominating Member ceases to hold a number of Designated Units equal to or greater than the Minimum Threshold, then the Representative Director designated by such Nominating Member, as applicable, shall be immediately removed from the Board, in each case, without any further action by the Board, and the resulting vacancy shall be filled in accordance with this Agreement.  The number of directors who shall be designated in accordance with Section 6.2(a)(vi) shall be irrevocably increased by one (1) for each designee removed pursuant to the foregoing sentence.

(d)          Assignment of Nominating Member Rights.  A Nominating Member, in such Nominating Member’s sole discretion, shall, in connection with the Transfer of a number of Designated Units at least equal to the Minimum Threshold in accordance with the terms and subject to the conditions of this Agreement, have the right to assign to a Major Transferee each of such Person’s rights under this Section 6.2 corresponding to such Designated Units with respect to the designation of directors of the Board.  If a Nominating Member shall exercise such right, the Nominating Member must explicitly transfer such designation rights to the applicable Major Transferee in addition to delivering written notice thereof to the Company, and the Company shall promptly, but in any event within five (5) Business Days thereafter deliver written notice thereof to all of the other Members.

(e)          Subsidiary Boards.  Each director of the Board shall have the right to serve as a member of the board of directors (or similar governing body) of any Subsidiary of the Company.

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(f)          Board Observers.  The Company shall, upon notice from any Member who, together with its Affiliates, holds (i) from the Reorganization Date through the date of such notice at least six percent (6%) of the Designated Units issued and outstanding and (x) less than a number of Designated Units equal to the Minimum Threshold as of the date of such notice, invite a Representative of such Member (a “Board Observer”) to attend the upcoming meeting(s) of the Board, in a non-voting capacity, and give such Board Observer copies of all notices, minutes, consents and other materials, financial or otherwise that the Company provides to its directors in connection with such meeting(s); provided, however, that the Board Observer shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; provided, further, that the Company reserves the right to withhold any information and to exclude such Board Observer from any meeting or portion thereof if access to such information or attendance at such meeting if the Company believes in good faith, upon advice of outside counsel, that such exclusion is reasonably necessary to preserve attorney-client privilege between the Company and its counsel.  The decision of the Company with respect to the privileged or confidential nature of such information shall be final and binding.  If, at any time, such Member, together with its Affiliates, ceases to hold a number of Designated Units equal to or greater than six percent (6%), then such Member shall no longer be entitled to designate a Board Observer and any Board Observer previously designated by such Member shall no longer be entitled to (i) attend meeting(s) of the Board and (ii) receive copies of all notices, minutes, consents and other materials, financial or otherwise that the Company provides to its directors in connection with such meeting(s).

6.3         Meetings of the Board.  The Board may hold meetings, both regular and special, within or outside the State of Delaware.  After the place and time of regular meetings of the Board shall have been determined and at least five (5) days’ notice thereof shall have been once given to each member of the Board, regular meetings may be held without further notice being given.  Special meetings of the Board may be called by the Chairperson of the Board, if any, or such other officer as may be delegated by the Board and shall be called by the Chairperson of the Board, if any, or such other officer on the written request of two (2) directors.  Notice of special meetings of the Board shall be given to each director at least forty-eight (48) hours before the date of the meeting in such manner as is determined by the Board.

6.4         Quorum; Acts of the Board.  (a) A quorum for the transaction of business by the Board shall require the presence of (i) a majority of the directors of the Board and (ii) on a first call for any meeting of the Board, all of the Representative Directors; provided, that if no quorum exists on such first call as a result of one or more Representative Directors not being present (each, an “Absent Representative Director”), then the presence of such Absent Representative Director(s) shall not be required for purposes of determining whether a quorum is present on a second call for the meeting (following at least 24 hours’ advance notice to each director); and (b) the affirmative vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board.  If a quorum cannot be met, then the meeting may be adjourned and rescheduled for a later date.  At the adjourned meeting, the Board may transact any business which might have been transacted at the original meeting.  Any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting, if all members of the Board or committee consent thereto in writing or by electronic transmission.  After an action is taken, the consent or consents relating thereto shall be filed with the minutes of the proceedings of the Board, or the committee thereof, in the same paper or electronic form as the minutes are maintained.

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6.5         Electronic Communications.  Directors may participate in meetings of the Board, or any committee, by means of telephone conference or other communications equipment that allows all persons participating in the meeting to hear each other, and such participation in a meeting shall constitute presence in person at the meeting.  If all the participants are participating by telephone conference or other communications equipment, the meeting shall be deemed to be held at the principal place of business of the Company.

6.6         Committees of the Board.  Promptly following the Reorganization Date, the Board shall establish an audit committee, a nominating and corporate governance committee and a compensation committee.  The Board may designate one or more other committees.  Each committee shall consist of one (1) or more of the directors of the Company; provided, that each Representative Director shall have the right to serve on any committee of the Board.  The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.  In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.  Any such committee shall act in any manner or capacity only to the extent authorized by the Board.  Each committee shall keep regular minutes of its meetings and report the same to the Board when required.

6.7         Compensation of Directors; Expenses.  The compensation committee of the Board shall have the authority to fix the compensation of the directors for their services; provided, however, that (a) the compensation of the Initial Directors shall be determined in the first instance by the Nominating Members holding at least a majority of the Common Units held by all Nominating Members collectively and (b) a Representative Director that is employed by its applicable Nominating Member shall not be entitled to any compensation for his or her service as a director.  Each director of the Board and Board Observer shall be entitled to reimbursement from the Company for his or her reasonable and documented out-of-pocket expenses (including travel) incurred in attending any meeting of the Board or any committee thereof, pursuant to the Company’s applicable policies.  A director may also serve the Company in other capacities and receive compensation therefor.

6.8         Removal of Directors.  Unless otherwise restricted by law and subject to Section 6.2, any director or the entire Board may be removed, with or without cause, at any time by the affirmative vote of Members holding a majority of the total voting power of the outstanding Common Units; provided, however, that (i) no Representative Director may be removed unless his or her Nominating Member shall have first provided written notice to the Board at least one (1) Business Day prior to the effectiveness of such removal, and (ii) any Representative Director as to which a Nominating Member shall have provided such written notice shall be removed.

6.9         Resignations.  Any director may resign at any time upon notice given in writing or by electronic transmission to the Board, the Chief Executive Officer or the Secretary.  The resignation shall take effect at the time specified therein, and if no time is specified, at the time of its receipt by the Board, the Chief Executive Officer or the Secretary, as the case may be.  Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

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6.10       Newly Created Management Positions and Vacancies.  Unless otherwise restricted by law and subject to Section 6.2, any newly created director position or any vacancy occurring in the Board for any cause may be filled by the affirmative vote of Members holding a majority of the total voting power of the outstanding Common Units, and each director so elected shall hold office until the expiration of the term of office of the director whom he or she has replaced or until his or her successor is elected and qualified or until his or her earlier death, resignation, disqualification or removal; provided, however, that any vacancy in a Representative Director position shall be filled only by the relevant Nominating Member, subject to the provisos set forth in Section 6.2.

6.11       Directors as Agents.  To the extent of their powers set forth in this Agreement the directors are agents of the Company for the purpose of the Company’s business, and the actions of the directors taken in accordance with such powers set forth in this Agreement shall bind the Company.

6.12       Officers.

(a)          Number.  The officers of the Company (each, an “Officer”) shall be chosen by the Board and shall consist of at least a Chief Executive Officer, a Treasurer and a Secretary.  The Board may also choose one or more Vice Presidents, Assistant Secretaries and Assistant Treasurers.  Any number of offices may be held by the same person.  The Board may appoint such other Officers and agents as it shall deem necessary or advisable.  The Board may delegate to any Officer the power to appoint, remove and prescribe the duties of any other Officer provided for in this Section.

(b)          Election, Term of Office and Qualifications.  The Officers shall be appointed by the Board for such term as shall be determined from time to time.  Each Officer shall hold office until a successor shall have been duly chosen and qualified or until such Officer’s earlier death, disqualification, resignation or removal.  The initial Officers shall be elected at the first meeting of the Board; provided, that, notwithstanding anything herein to the contrary, the initial Chief Executive Officer shall be Michael Sicoli.  Any number of offices may be held by the same person.

(c)          Removal.  Any Officer may be removed, for or without cause, at any time by the Board.

(d)          Resignations.  Any Officer may resign at any time by giving written notice of his or her resignation to the Board or the Secretary of the Company.  Any such resignation shall take effect at the time specified therein, or, if the time is not specified, upon receipt thereof by the Board, the Chief Executive Officer or the Secretary, as the case may be.  Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

(e)          Vacancies.  A vacancy in any office for any reason shall be filled by the Board for the unexpired portion of the term thereof and until a successor shall have been duly chosen and qualified, or until such Officer’s earlier death, disqualification, resignation or removal.

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(f)          Chairperson.  The Chairperson of the Board shall be a member of the Board and shall preside at all meetings of the Board and of the Members.  In addition, the Chairperson of the Board shall have such powers and perform such other duties as from time to time may be assigned to him or her by the Board.

(g)          Chief Executive Officer.  The Chief Executive Officer shall be the chief executive officer of the Company.  He or she shall exercise such duties as customarily pertain to the office of chief executive officer, and shall have general and active management of the property, business and affairs of the Company, subject to the supervision and control of the Board.  He or she shall perform such other duties as prescribed from time to time by the Board.  Except as the Board shall otherwise authorize, the Chief Executive Officer shall execute bonds, mortgages and other contracts on behalf of the Company and shall cause the seal to be affixed to any instrument requiring it and, when so affixed, the seal shall be attested by the signature of the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer.

(h)          Vice Presidents.  Each Vice President, if any are elected, of whom one or more may be designated an Executive Vice President, shall have such powers and shall perform such duties as shall be assigned to him or her by the Chief Executive Officer or the Board.

(i)           Secretary and Assistant Secretary.  The Secretary shall be responsible for filing legal documents and maintaining records for the Company.  The Secretary shall attend all meetings of the Board and all meetings of the Members, if any, and record all the proceedings of the meetings of the Company in a book to be kept for that purpose and perform like duties for the standing committees, if any, when required.  The Secretary shall give, or cause to be given, any notice required to be given under this Agreement, including any notice of special meetings of the Board and all meetings of the Members, if any, and shall perform such other duties as may be prescribed by the Board or the Chief Executive Officer, under whose supervision the Secretary shall serve.  The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board (or if there be no such determination, then in the order of their election) shall, in the absence of the Secretary or in the event of the Secretary’s inability to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

(j)           Treasurer and Assistant Treasurer.  The Treasurer shall have the custody of the Company funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board.  The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the Chief Executive Officer and to the Board, when so required, an account of all of the Treasurer’s transactions and of the financial condition of the Company.  The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board (or if there be no such determination, then in the order of their election) shall, in the absence of the Treasurer or in the event of the Treasurer’s inability to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board may from time to time prescribe.

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(k)          Compensation.  The compensation of the Officers shall be fixed from time to time by the Board (subject to any employment agreements that may then be in effect between the Company or any of its Subsidiaries and the relevant Officer).  None of such Officers shall be prevented from receiving such compensation by reason of the fact that he or she is also a director of the Company.  Nothing contained herein shall preclude any Officer from serving the Company, or any Subsidiary, in any other capacity and receiving such compensation by reason of the fact that he or she is also a director of the Company.

(l)           Company Funds and Checks.  The funds of the Company shall be kept in such depositories as shall from time to time be prescribed by the Board.  All checks or other orders for the payment of money shall be signed by the Chief Executive Officer or the Treasurer or such other person or agent as may from time to time be authorized and with such countersignature, if any, as may be required by the Board.

(m)         Contracts and Other Documents.  The Chief Executive Officer or the Treasurer, or such other officer or officers as may from time to time be authorized by the Board or any other committee given specific authority by the Board during the intervals between the meetings of the Board, shall have power to sign and execute on behalf of the Company deeds, conveyances and contracts, and any and all other documents requiring execution by the Company.

(n)          Delegation of Duties.  In the absence, disability or refusal of any Officer to exercise and perform his or her duties, the Board may delegate to another Officer such powers or duties.

(o)          Officers as Agents.  The Officers, to the extent of their powers set forth in this Agreement or otherwise vested in them by action of the Board not inconsistent with this Agreement, are agents of the Company for the purpose of the Company’s business, and the actions of the Officers taken in accordance with such powers shall bind the Company.

6.13       Waiver of Fiduciary Duties.  This Agreement is not intended to, and does not, create or impose any implied duty (including, without limitation, any fiduciary duty and, for purposes of clarity, any prohibition on usurping opportunities of the Company) otherwise existing at law or in equity on any of Representative Director, any Member or any affiliate, officer, director, employee or agent of any of the foregoing (each of the foregoing, a “Responsible Party”).  To the fullest extent permitted by applicable law, and notwithstanding any duty otherwise existing at law or in equity, each of the Company, the directors, the Members, and any other person or entity that is a party to or is otherwise bound by this Agreement (including, without limitation, (a) the Company in its capacity as a debtor or debtor in possession in a bankruptcy case commenced under 11 U.S.C. (a “Bankruptcy Case”), (b) any successor to the Company in a Bankruptcy Case or otherwise, including, without limitation, a trustee, a litigation trust or estate representative, including, without limitation, a representative under 11 U.S.C. Section 1023(a)(5), and (c) any creditor or committee of creditors or equity holders seeking or obtaining standing to assert claims of the estate in a Bankruptcy Case) (each of the foregoing, a “Bound Party”) hereby expressly waives all fiduciary duties and, for purposes of clarity, any prohibition on usurping opportunities of the Company or limitation with respect to an Excluded Opportunity, that absent such waiver, may be implied at law or in equity or otherwise owed to a Bound Party, and in doing so, recognizes, acknowledges and agrees that the duties and obligations of the Responsible Parties are only as expressly set forth in this Agreement.

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6.14       No Liability to Company or Members.  To the extent permitted by applicable law, none of the directors nor any of the Company’s direct or indirect owners, managers, members, partners, directors, officers, employees, agents or any of their respective Affiliates shall be liable to any Member or the Company for (a) any action taken or failure to act as a director, or on behalf of the Board, with respect to the Company unless such action taken or failure to act is a willful violation of a material law or a willful violation of the material provisions of this Agreement and/or is actually fraudulent, grossly negligent or willfully malfeasant, (b) any action or inaction arising from reliance made in good faith upon the opinion or advice as to legal matters of legal counsel or as to accounting matters of accountants selected by any of them with reasonable care, in the absence of actual fraud or willful misconduct, or (c) the action or inaction of any agent, contractor or consultant selected and monitored by any of them with reasonable care, in the absence of actual fraud or willful misconduct.

6.15       Delegation of Authority.  Subject to compliance by the Board with any provision of this Agreement, the Board may, from time to time, delegate in writing to any Person such authority and powers to act on behalf of the Company as it shall deem advisable in its sole and absolute discretion.  Subject to any rights of a Member pursuant to this Agreement, any delegation pursuant to this Section 6.15 may be revoked at any time and for any reason or no reason by the Board.

6.16       Performance of Duties; Liability of Directors and Officers; Opportunities.

(a)          In performing its, his or her duties, the Board and each director shall be entitled to rely in good faith on the provisions of this Agreement and on information, opinions, reports or statements (including financial statements and information, opinions, reports or statements as to the value or amount of the assets, liabilities, profits or losses of the Company and its Subsidiaries or any facts pertinent to the existence and amount of assets from which Distributions to Members might properly be made), of the following other Persons or groups: (i) one or more officers or employees of the Company or any of the Company’s Subsidiaries, (ii) any attorney, independent accountant or other Person employed or engaged by the Company or any of its Subsidiaries, or (iii) any other Person who has been selected with reasonable care by or on behalf of the Company or any of its Subsidiaries, in each case, as to matters which such relying Person reasonably believes to be within such other Person’s professional or expert competence.

(b)          No individual who is a manager, director, an officer, employee, member or direct or indirect owner of a Member, or any combination of the foregoing, shall be personally liable under any judgment of a court, or in any other manner, for any debt, obligation or liability of the Company, whether that liability or obligation arises in contract, tort or otherwise solely by reason of being a manager, director, officer, employee, member or direct or indirect owner of a Member or any combination of the foregoing.

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(c)          No director, and no manager, director, officer, employee, member or direct or indirect owner of a Member, shall be liable to the Company or any Member for any act or omission, including any mistake of fact or error in judgment taken, suffered or made by such Person in good faith and with the belief that such act or omission is in or is not contrary to the best interests of the Company and is within the scope of authority granted to such Person, provided, that such act or omission does not constitute actual fraud, willful misconduct, or gross negligence (as defined under Delaware law) in the conduct of such Person’s office.  The provisions of this Agreement, to the extent that such provisions expand, restrict or eliminate the duties and liabilities of any Person otherwise existing at law or in equity to the Company or the Members, are agreed by the Company and the Members to modify to that extent such duties and liabilities of such Person.

(d)          Except as set forth in Section 6.18, each Member expressly acknowledges and agrees that, notwithstanding any duty otherwise existing at law or in equity: (i) each Member holding Common Units and each of their respective Affiliates, has the right to, and shall have no duty (contractual, fiduciary or otherwise) not to, directly or indirectly engage in the same or similar business activities or lines of business as the Company and its Subsidiaries, including those deemed to be competing with the Company and its Subsidiaries; and (ii) in the event that a Member holding Common Units or its Affiliates acquire knowledge of a potential transaction or matter that may be a corporate opportunity for the Company or its Subsidiaries or any Member, or their respective Affiliates, neither such Member nor any of its Affiliates shall have any duty (contractual, fiduciary or otherwise) to communicate or present such corporate opportunity to the Company or its Subsidiaries or any other Member, as the case may be, nor shall such Member or any of its Affiliates be liable to the Company or its Subsidiaries or any other Member or any of their respective Affiliates by reason of the fact that such Member or any of its Affiliates, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another Person, or does not present such opportunity to the Company or its Subsidiaries or any other Member.

6.17       Indemnification.

(a)          Third Party Actions, Suits and Proceedings.  To the fullest extent permitted by law, the Company shall indemnify each Member, director and each officer, manager and director of the Company and its Subsidiaries and any other Person who was or is made a party or is threatened to be made a party to or is involved in or participates as a witness with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Company), by reason of the fact that he or she, or a Person of whom he or she is the legal representative, is or was a director, a manager or an officer of the Company, or is or was serving at the request of the Company as a manager, director, officer, fiduciary or agent of a Subsidiary of the Company or of any other partnership, corporation, limited liability company, joint venture, trust or other enterprise (each a “Proceeding”), against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Person in connection with such Proceeding if (i) such Person acted in good faith and in a manner such Person reasonably believed to be in or not opposed to the best interests of the Company, (ii) such Person’s actions do not constitute actual fraud, willful misconduct, gross negligence (as defined under Delaware law) or a breach of such Person’s duty of loyalty and (iii) with respect to any criminal Proceeding, such Person had no reasonable cause to believe such Person’s conduct was unlawful.

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(b)          Actions by the Company.  To the fullest extent permitted by law, the Company shall indemnify any Member, director and each officer, manager and director of the Company and its Subsidiaries and any other Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Company to procure a judgment in its favor by reason of the fact that such Person, or a Person of whom he or she is the legal representative, is or was a director, a manager or an officer of the Company or its Subsidiaries, or is or was serving at the request of the Company as a manager or director, officer, fiduciary or agent of a Subsidiary of the Company or of any other partnership, corporation, limited liability company, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by such Person in connection with the defense or settlement of such action or suit if such Person acted in good faith and in a manner such Person reasonably believed to be in or not opposed to the best interests of the Company and except that no indemnification shall be made in respect of any claim, issue or matter as to which such Person shall have been adjudged to be liable to the Company unless and only to the extent that the Court of the Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such Person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

(c)          Rights Non-Exclusive.  The rights to indemnification and the payment of expenses incurred in defending a Proceeding in advance of its final disposition conferred in this Section 6.17 shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of this Agreement, any other agreement or otherwise.

(d)          Insurance.  Unless otherwise determined by the Board, the Company shall maintain insurance, at its expense, on its own behalf and on behalf of any person who is or was at any time after the Reorganization Date a manager, director, officer, fiduciary or agent of the Company or any of its Subsidiaries against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the Company would have the power to indemnify such person against such liability under this Section 6.17.

(e)          Priority.

(i)          The Company and the Members hereby agree that the obligation of the Company under this Section 6.17 (such obligations, the “Company Indemnification Obligations”) to indemnify or advance expenses to any Person for the matters covered hereby shall be the primary source of indemnification and advancement of such Person in connection therewith and any obligation on the part of a Member or any of its Affiliates (an “Upstream Indemnifying Party”) with respect thereto (such obligation, a “Member Indemnification Agreement”) shall be secondary to the Company Indemnification Obligations.  In the event that the Company fails to indemnify any Person as required or contemplated by this Agreement (such amounts, the “Unpaid Indemnity Amounts”) and an Upstream Indemnifying Party makes any payment to such Person in respect of indemnification or advancement of expenses under any Member Indemnification Agreement on account of such Unpaid Indemnity Amounts, such Upstream Indemnifying Party shall be subrogated to the rights of such Person under this Article VI or any similar arrangement or agreement for indemnification or advancement of expenses by the Company or the Company’s Subsidiaries (a “Company Indemnification Agreement”).

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(ii)         The Company hereby agrees that, to the fullest extent permitted by applicable law, its obligation to indemnify a Person under this Article VI or any Company Indemnification Agreement shall include any amounts expended by an Upstream Indemnifying Party under any Member Indemnification Agreement in respect of indemnification or advancement of expenses to any Person in connection with a Proceeding involving his or her service as a director, manager or officer of the Company, or manager, director, officer, fiduciary or agent of the Company or any of its Subsidiaries.

(iii)        The right to indemnification and payment of expenses conferred in this Article VI shall not be exclusive of any other right that a director or officer of the Company, or manager, director, officer, fiduciary or agent of the Company or any of its Subsidiaries may have or hereafter acquire under any law (common or statutory) or provision of this Agreement or otherwise.

(iv)        The indemnification and other rights described in this Section 6.17are for the benefit of, and shall be enforceable by, the Persons identified in this Section acting in the capacities described therein and not in any other capacity.

(f)           Expenses.  Expenses incurred by any Person described in Section 6.17(a) in defending a Proceeding shall be paid by the Company periodically upon receipt of an undertaking by or on behalf of such Person to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Company.  Such expenses incurred by employees or agents may be so paid upon such terms and conditions, if any, as the Board deems appropriate.

(g)          Employees and Agents.  Persons who are not covered by the foregoing provisions of this Section 6.17 and who are or were Members, employees or agents of the Company, or who are or were serving at the request of the Company as employees or agents of a Subsidiary of the Company or of any other limited liability company, corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the Board.

(h)          Contract Rights.  The provisions of this Section 6.17 shall be deemed to be a contract right between the Company and each Member and each director and officer of the Company, or manager, director, officer, fiduciary or agent of the Company or any of its Subsidiaries who serves in any such capacity at any time while this Section 6.17 and the relevant provisions of the Delaware Act or other applicable law are in effect, and any repeal or modification of this Section 6.17 or any such law shall not affect any rights or obligations then existing with respect to any state of facts or Proceeding then existing.  The indemnification and other rights provided for in this Section 6.17 shall inure to the benefit of the heirs, executors and administrators of any Person entitled to such indemnification.  The Company shall not be required to indemnify any Person in connection with any Proceeding initiated by or on behalf of such Person, unless otherwise determined by the Board.  It is the express intention of the parties hereto that the provisions of this Article VI for the indemnification and exculpation of Persons covered thereunder (“Covered Persons”) may be relied upon by such Covered Persons and may be enforced by such Covered Persons (or by the Board on behalf of any such Covered Person; provided, that the Board shall not have any obligation to so act for or on behalf of any such Covered Person) against the Company pursuant to this Agreement or a separate indemnification agreement, as if such Covered Persons were parties hereto.  A Covered Person shall give the Company prompt written notice upon being notified of a pending or threatened Proceeding.

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(i)           Merger or Consolidation; Other Enterprises.  For purposes of this Section 6.17, references to “the Company” shall include, in addition to the resulting company, any constituent company (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its managers, directors, officers or agents, so that any Person who is or was a manager, director, officer or agent of such constituent company, or is or was serving at the request of such constituent company as a manager, director, officer or agent of another company, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Section 6.17 with respect to the resulting or surviving company as he or she would have with respect to such constituent company if its separate existence had continued.  For purposes of this Section 6.17, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a Person with respect to any employee benefit plan; and references to “serving at the request of the Company” shall include any service as a manager, director, officer or agent of the Company that imposes duties on, or involves services by, such manager, director, officer or agent with respect to an employee benefit plan, its participants or beneficiaries; and a Person who acted in good faith and in a manner such Person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in this Section 6.17.

(j)           No Member Recourse.  Anything herein to the contrary notwithstanding, any indemnity by the Company relating to the matters covered in this Section 6.17 shall be provided out of and to the extent of Company assets only and no Member (unless such Member otherwise agrees in writing or is found in a final decision of a court of competent jurisdiction to have personal liability on account thereof) shall have personal liability on account thereof or shall be required to make additional Capital Contributions to help satisfy such indemnity of the Company.

6.18       Corporate Opportunities.

(a)          Notwithstanding anything contained in Section 6.16(d), no executive director or officer of the Company of any of its Subsidiaries shall be permitted to participate in any corporate opportunity that could reasonably be expected to benefit the Company or any of its Subsidiaries based on their respective then-current business plans without first presenting, or offering the opportunity to participate in, such corporate opportunity to the Company or such Subsidiary, as applicable.  The Company renounces, to the fullest extent permitted by law, any interest or expectancy of the Company or any of its Subsidiaries in, or in being offered an opportunity to participate in, an Excluded Opportunity.  An “Excluded Opportunity” is any matter, transaction or interest that is presented to, acquired, created or developed by, or which otherwise comes into the possession of, any non-executive director of the Company who is not an employee of the Company or any of its Subsidiaries, unless, in each case, such matter, transaction or interest is presented to, acquired, created or developed by, or otherwise comes into the possession of any such non-executive director expressly and solely in connection with his or her capacity as a non-executive director of the Company and such matter, transaction or interest could reasonably be anticipated to benefit the Company or any of its Subsidiaries based on the then-current business plan of the Company.  For the avoidance of doubt, in no event shall any Member or any partner, member, director, stockholder, employee or agent of any such Member, other than someone who is a director or an employee of the Company or any of its Subsidiaries be prohibited or otherwise restricted from undertaking a potential corporate opportunity.

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(b)          In addition to and notwithstanding the foregoing provisions of this Section 6.18, a corporate opportunity shall not be deemed to be a potential corporate opportunity for the Company or any of its Subsidiaries if it is a business opportunity that (i) the Company and its Subsidiaries are neither financially or legally able, nor contractually permitted, to undertake, (ii) from its nature, is not in the line of the Company’s or its Subsidiaries’ business or is of no practical advantage to the Company or its Subsidiaries or (iii) is one in which the Company and its Subsidiaries have no interest or reasonable expectancy.

(c)          None of the amendment, alteration, change or repeal of this Section 6.18, nor the adoption of any provision of this Agreement inconsistent with this Section 6.18, shall eliminate or reduce the effect of this Section 6.18 in respect of any matter occurring, or any cause of action, suit or claim that, but for this Section 6.18, would accrue or arise, prior to such amendment, alteration, change, repeal or adoption.

(d)          To the fullest extent permitted by law, any Person purchasing or otherwise acquiring any interest in any Units shall be deemed to have notice of and to have consented to the provisions of this Section 6.18.

ARTICLE VII

TAX MATTERS

7.1         Tax Elections.  The Company is intended to be classified as a corporation for U.S. federal income and all applicable U.S. state and local tax purposes.  Consistent with such intent, the Company is authorized (without requiring a resolution of the Board) to make such filings and elections as may be required to cause it to be classified as a corporation for such purposes effective as of the date of formation.  The Company shall execute and file a U.S. Internal Revenue Service Form 8832 electing to classify the Company as a corporation for U.S. federal income tax purposes pursuant to U.S. Treasury Regulations Section 301.7701-3(c).  The Company shall not subsequently elect to change such classification.  No person shall take any action inconsistent with such classification.  Each Member acknowledges and agrees that the Company will be classified as a corporation for U.S. federal income and all applicable U.S. state and local tax purposes, and agrees to cooperate in effecting such election.

7.2         Fiscal Year; Taxable Year.  Each of the Fiscal Year and the taxable year of the Company shall end on December 31 of each calendar year unless the Board shall determine otherwise in compliance with applicable laws.

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ARTICLE VIII

TRANSFER OF UNITS; SUBSTITUTE MEMBERS

8.1         Transfer Restrictions.

(a)          Each Member agrees that it shall not, directly or indirectly, whether by merger, consolidation, division or otherwise, and whether by or through one or more Affiliates, Transfer any of its Units except (i) in compliance with the Securities Act, (ii) in compliance with any other applicable securities or “blue sky” laws, (iii) in accordance with the terms and conditions of this Agreement, (iv) to an Affiliate of such Member or to an unaffiliated, third-party transferee which, unless otherwise approved by the Board, as of the expected date of such Transfer, (A) does not own ten percent (10%) or more of the outstanding equity interests of any Person engaged in the Business, (B) is not reasonably likely to own ten percent (10%) or more of the outstanding equity interests of any Person engaged in the Business within the next twelve (12) months, (C) is not a director, officer or employee of any Person engaged in the Business and (D) is not a Person engaged in the Business, or an Affiliate thereof, and such transferee must provide a certification to the effect that it satisfies the requirements set forth in this clause (iv) prior to any such potential Transfer, and (v) with a joinder agreement in form satisfactory to the Board executed and delivered by the transferee to the extent such transferee is not already a Member (the transferee of any such Transfer being an “Approved Transferee”); provided,however, that Transfers pursuant to a Drag-Along Sale in accordance with Section 8.4 hereof shall not be subject to the restrictions in the foregoing clause (iv); provided, further, that with respect to a Transfer to an unaffiliated third party transferee, the transferring Member shall have complied with Section 8.2 and Section 8.3.  The Company shall update Schedule of Members and Schedule of Units attached hereto from time to time to reflect (1) any additional Members that are Approved Transferees or new Members that become party hereto in accordance with this Agreement’s terms, (2) the removal of any Persons who are no longer Members and (3) any changes in any Member’s address.

(b)          In no event may any Transfer of Units by any Member be made if such Transfer could, or could reasonably be expected to, cause the Company to, after giving effect to the exercise, conversion or exchange of all securities convertible into, or exercisable or exchangeable for, Units, register the Units under Section 12(g) of the Exchange Act, or otherwise be subject to the reporting obligations under Section 15(d) of the Exchange Act.

(c)          Any attempt to Transfer any Units not in compliance with this Agreement shall be null and void ab initio, and the Company shall not give any effect in the Schedule of Members or Schedule of Units to such attempted Transfer.  Nothing in this Section 8.1 shall limit any restrictions on Transfer contained in any other contract by and among the Company and any of the Members, or by and among any of the Members.

(d)          Each Member who is an individual shall cause his or her spouse to execute a spousal consent to this Agreement in the form attached hereto as Exhibit A hereto.

(e)          Certain Prohibited Transfers.

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(i)          Any attempted Transfer of Company Securities prior to the Restriction Release Date, or any attempted Transfer of Company Securities pursuant to an agreement entered into prior to the Restriction Release Date, shall be prohibited and void ab initio insofar as it purports to transfer ownership or rights in respect of such Company Securities to the purported transferee of a Prohibited Transfer (a “Purported Transferee”) (a) if the transferor is a Substantial Member or such Transfer results in a decrease in the Percentage Equity Ownership of any Substantial Member or (b) to the extent that, as a result of such Transfer (or any series of Transfers of which such Transfer is a part), either (i) any Person (including any group of Persons) shall become a Substantial Member other than by reason of Treasury Regulation section 1.382-2T(j)(3) or any successor to such regulation or (ii) the Percentage Equity Ownership interest of any Substantial Member shall be increased.  Nothing in this Section 8.1 shall preclude the settlement of any transaction with respect to the Company Securities entered into through the facilities of a national securities exchange; provided, however, that the Company Securities and parties involved in such transaction shall remain subject to the provisions of this Section 8.1 in respect of such transaction.  Unless a transferor that is not a Substantial Member at the time of the Transfer has actual knowledge that a Transfer by it is prohibited by this Section 8.1, (1) such transferor shall have no liability to the Company in respect of any losses or damages suffered by the Company as a result of such Transfer and the Company shall have no cause of action or rights against such transferor in respect of such losses or damages, and (2) such transferor shall have no liability to the respective transferee in respect of any losses or damages suffered by such transferee by virtue of the operation of this Section 8.1.

(ii)         The restrictions set forth in Section 8.1(e)(i) shall not apply to an attempted Transfer (i) if the transferor or the transferee obtains the prior written approval of the Board or a duly authorized committee thereof in accordance with Section 8.1(e)(iii) below, (ii) if such Transfer is made as part of: (A) certain transactions approved by the Board, including, but not limited to, a merger or consolidation in which all Members receive, or are offered the same opportunity to receive, cash or other consideration for all Units, and upon the consummation of which the acquirer will own at least a majority of the outstanding Units, (B) a tender or exchange offer by the Company to purchase Company Securities, (C) a purchase program effected by the Company on the open market and not the result of a privately negotiated transaction, or (D) any optional or required redemption by the Company of a Company Security pursuant to the terms of such security or (iii) if the Transfer is solely of Common Units received by the transferor in connection with the Plan, who is, and on the Reorganization Date was, a Substantial Member, and the transferee immediately prior to such Transfer either (A) is already a Substantial Member, (B) has a Percentage Equity Ownership of zero, or (C) is not a Substantial Member and has a Percentage Equity Ownership with respect to the Common Units that is at its lowest point, but not zero, at any time during the shorter of (x) the period from and after the Reorganization Date until such Transfer and (y) the three (3) year period prior to such Transfer.  Notwithstanding the foregoing, the exceptions set forth above in clauses (ii) and (iii) of this Section 8.1(e)(ii) shall not apply to any exercise of the Warrants.

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(iii)        The restrictions contained in this Section 8.1(e) are for the purposes of reducing the risk that any “ownership change” (as defined in section 382 of the Code) with respect to the Company may limit the Company’s ability to utilize its Tax Benefits.  In connection therewith, and to provide for effective policing of these provisions, any Person who desires to effect an otherwise Prohibited Transfer (a “Requesting Person”) shall, prior to the date of such transaction for which the Requesting Person seeks authorization (the “Proposed Transaction”), request in writing (a “Request”) that the Board review the Proposed Transaction and authorize or not authorize the Proposed Transaction in accordance with this Section 8.1(e)(iii).  A Request shall be mailed or delivered to the Secretary of the Company at the Company’s principal place of business.  Such Request shall be deemed to have been received by the Company when actually received by the Company.  A Request shall include: (i) the name, address and telephone number of the Requesting Person; (ii) the number and Percentage Equity Ownership of Company Securities (by type) then beneficially owned by the Requesting Person; (iii) a reasonably detailed description of the Proposed Transaction or Proposed Transactions for which the Requesting Person seeks authorization; and (iv) a request that the Board authorize the Proposed Transaction pursuant to this Section 8.1(e)(iii).  The Board shall endeavor to respond to each Request within twenty (20) business days of receiving such Request; provided, however, that the failure of the Board to respond during such twenty (20) business day period shall not be deemed to be a consent to the Transfer.  The Board shall authorize a Proposed Transaction unless the Board determines in good faith that the Proposed Transaction, considered alone or with other transactions (including, without limitation, past transactions or contemplated transactions), would create a material risk that the Company’s Tax Benefits may be jeopardized.  Any determination by the Board not to authorize a Proposed Transaction shall cause such Proposed Transaction to be deemed a Prohibited Transfer.  The Board may impose any conditions that it deems reasonable and appropriate in connection with authorizing any Proposed Transaction.  In addition, the Board may require an affidavit or representations from such Requesting Person or opinions of counsel to be rendered by counsel selected by the Requesting Person (and reasonably acceptable to the Board), in each case, as to such matters as the Board may reasonably determine with respect to the preservation of the Tax Benefits.  Any Requesting Person who makes a Request to the Board shall, unless such obligation is waived by the Board, reimburse the Company, within thirty (30) days of demand therefor, for all reasonable and documented out-of-pocket costs and expenses incurred by the Company with respect to any Proposed Transaction, including, without limitation, the Company’s reasonable costs and expenses incurred in determining whether to authorize the Proposed Transaction, which costs may include, but are not limited to, any expenses of counsel and/or tax advisors engaged by the Board to advise the Board or deliver an opinion thereto.  The Board may require, as a condition to its consideration of a Request, that the Requesting Person execute an agreement in form and substance satisfactory to the Company providing for the reimbursement of such costs and expenses.  Any authorization of the Board hereunder may be given prospectively or retroactively.

(iv)        Notwithstanding the foregoing, the Board may determine that the restrictions set forth in Section 8.1(e)(i) shall not apply to any particular transaction or transactions, whether or not a request has been made to the Board, including a Request pursuant to Section 8.1(e)(iii), subject to any conditions that it deems reasonable and appropriate in connection therewith.  Any determination of the Board hereunder may be made prospectively or retroactively.

(v)         The Board, to the fullest extent permitted by law, may exercise the authority granted by this Section 8.1(e) through duly authorized officers or agents of the Company.  Nothing in this Section 8.1(e) shall be construed to limit or restrict the Board in the exercise of its fiduciary duties under applicable law.  The Board may require that any certificates representing Company Securities issued prior to the Restriction Release Date shall contain a conspicuous legend in substantially the following form, evidencing the restrictions set forth in this Section 8.1(e):

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THE LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, AS THE SAME MAY BE AMENDED AND RESTATED FROM TIME TO TIME (THE “OPERATING AGREEMENT”), CONTAINS CERTAIN RESTRICTIONS PROHIBITING THE TRANSFER (AS DEFINED IN THE OPERATING AGREEMENT) OF COMPANY SECURITIES (AS DEFINED IN THE OPERATING AGREEMENT) WITHOUT THE PRIOR AUTHORIZATION OF THE BOARD OF THE COMPANY IF SUCH TRANSFER MAY AFFECT THE PERCENTAGE OF STOCK OF THE COMPANY (WITHIN THE MEANING OF SECTION 382 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED FROM TIME TO TIME (THE “CODE”) AND THE TREASURY REGULATIONS PROMULGATED THEREUNDER) THAT IS TREATED AS OWNED BY A “SUBSTANTIAL MEMBER” (AS DEFINED IN THE OPERATING AGREEMENT).  A COMPLETE AND CORRECT COPY OF THE OPERATING AGREEMENT SHALL BE FURNISHED FREE OF CHARGE TO THE HOLDER OF RECORD OF THIS CERTIFICATE UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY.

(vi)        The Company shall have the power to make appropriate notations upon its transfer records and to instruct any transfer agent, registrar, securities intermediary or depository with respect to the requirements of this Section 8.1(e) for any uncertificated Company Securities or Company Securities held in an indirect holding system, and the Company shall provide notice of the restrictions on transfer and ownership to holders of uncertificated Units in accordance with applicable law.

(f)          Treatment of Excess Securities.

(i)          No officer, employee or agent of the Company shall record any Prohibited Transfer, and the Purported Transferee shall not be recognized as a Member for any purpose whatsoever in respect of the Excess Securities.  Until the Excess Securities are acquired by another Person in a Transfer that is not a Prohibited Transfer, the Purported Transferee shall not be entitled with respect to such Excess Securities to any rights of Members, including, without limitation, the right to vote such Excess Securities and to receive dividends or distributions, whether liquidating or otherwise, in respect thereof, if any.  Once the Excess Securities have been acquired in a Transfer that is not a Prohibited Transfer, the Company Securities shall cease to be Excess Securities.  For this purpose, any transfer of Excess Securities not in accordance with the provisions of this Section 8.1(f) shall also be a Prohibited Transfer.

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(ii)         If the Board determines that a Transfer of Company Securities constitutes a Prohibited Transfer pursuant to Section 8.1(e), then, upon written demand by the Company, the Purported Transferee shall transfer or cause to be transferred any certificate or other evidence of ownership of the Excess Securities within the Purported Transferee’s possession or control, together with any Prohibited Distributions, to the Agent.  The Agent shall thereupon sell to a buyer or buyers, which may include the Company, the Excess Securities transferred to it in one or more arms’ length transactions (over the NASDAQ Stock Market or other national securities exchange on which the Company Securities may be traded, if possible, or otherwise privately);provided, however, that the Agent shall effect such sale or sales in an orderly fashion and shall not be required to effect any such sale within any specific time frame if, in the Agent’s discretion, such sale or sales would disrupt the market for the Company Securities or otherwise would adversely affect the value of the Company Securities.  If the Purported Transferee has resold the Excess Securities before receiving the Company’s demand to surrender Excess Securities to the Agent, the Purported Transferee shall be deemed to have sold the Excess Securities for the Agent, and shall be required to transfer to the Agent any Prohibited Distributions and proceeds of such sale, except to the extent that the Company grants written permission to the Purported Transferee to retain a portion of such sales proceeds not exceeding the amount that the Purported Transferee would have received from the Agent pursuant to Section 8.1(f)(iv) if the Agent rather than the Purported Transferee had resold the Excess Securities.

(iii)        If the Board determines that a Transfer of Company Securities constitutes a Prohibited Transfer pursuant to Section 8.1(e), the purported transferor of such Prohibited Transfer (the “Purported Transferor”) shall, upon written demand by the Company, deliver to the Agent the sales proceeds from the Prohibited Transfer (in the form received, i.e., whether in cash or other property), and the Agent shall thereupon sell any noncash consideration to a buyer or buyers in one or more arms’ length transactions (including over a national securities exchange, if possible).  If the Purported Transferee is determinable (other than with respect to a transaction entered into through the facilities of a national securities exchange) and any Excess Securities have not been resold, the Agent (after deducting amounts necessary to cover its costs and expenses incurred in connection with its duties hereunder) shall, to the extent possible, return the Excess Securities and Prohibited Distributions to the Purported Transferor, and shall reimburse the Purported Transferee from the sales proceeds received from the Purported Transferor (or the proceeds from the disposition of any non-cash consideration) for the cost of any Excess Securities.  If the Purported Transferee is not determinable, or to the extent the Excess Securities have been resold and thus cannot be returned to the Purported Transferor, the Agent (after deducting amounts necessary to cover its costs and expenses incurred in connection with its duties hereunder) shall use the proceeds to acquire on behalf of the Purported Transferor, in one or more arms’ length transactions (including over a national securities exchange on which the Company Securities may be traded, if possible, or otherwise privately), an equal amount of Company Securities in replacement of the Excess Securities sold; provided, however, that, to the extent the amount of proceeds is not sufficient to fund the purchase price of such Company Securities and the Agent’s costs and expenses, the Purported Transferor shall promptly fund such amounts upon demand by the Agent.  Any remaining amounts held by the Agent shall be paid in accordance with Section 8.1(f)(iv)(C).

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(iv)        The Agent shall apply any proceeds or any other amounts received by it in accordance with Section 8.1(f)(ii) as follows: (A) first, such amounts shall be paid to the Agent to the extent necessary to cover its costs and expenses incurred in connection with its duties hereunder; (B) second, any remaining amounts shall be paid to the Purported Transferee, up to the amount paid by the Purported Transferee for the Excess Securities (or in the case of any Prohibited Transfer by gift, devise or inheritance or any other Prohibited Transfer without consideration, the fair market value, (x) calculated on the basis of the closing market price for the Company Securities on the day before the Prohibited Transfer, (y) if the Company Securities are not listed or admitted to trading on any stock exchange but are traded in the over-the-counter market, calculated based upon the average of the highest bid and lowest asked prices, as such prices are reported by the relevant inter-dealer quotation service or any successor system on the day before the Prohibited Transfer or, if none, on the last preceding day for which such quotations exist, or (z) if the Company Securities are neither listed nor admitted to trading on any stock exchange nor traded in the over-the-counter market, then as determined in good faith by the Board); and (C) third, any remaining amounts, subject to the limitations imposed by the following proviso, shall be paid to one or more organizations qualifying under section 501(c)(3) of the Code (or any comparable successor provision) selected by the Board; provided, however, that if the Excess Securities (including any Excess Securities arising from a previous Prohibited Transfer not sold by the Agent in a prior sale or sales) represent a 4.98% or greater Percentage Equity Ownership in any class of Company Securities, then any such remaining amounts to the extent attributable to the disposition of the portion of such Excess Securities exceeding a 4.98% Percentage Equity Ownership interest in such class shall be paid to two or more organizations qualifying under section 501(c)(3) of the Code selected by the Board, such that no organization qualifying under section 501(c)(3) of the Code shall be deemed to possess a Percentage Equity Ownership in excess of 4.98%.  The recourse of any Purported Transferee in respect of any Prohibited Transfer shall be limited to the amount payable to the Purported Transferee pursuant to clause (B) above.  In no event shall the proceeds of any sale of Excess Securities pursuant to this Section 8.1(f) inure to the benefit of the Company.

(v)         In the event of any Transfer that does not involve a transfer of securities of the Company within the meaning of Delaware law (collectively, “Securities,” and each individually, a “Security”) but which would cause a Substantial Member to violate a restriction on Transfers provided for in Section 8.1(e), the application of Sections 8.1(f)(ii), 8.1(f)(iii), and 8.1(f)(iv) shall be modified as described in this Section 8.1(f)(v).  In such case, no such Substantial Member shall be required to dispose of any interest that is not a Security, but such Substantial Member and/or any Person whose ownership of Securities is attributed to such Substantial Member shall (i) in the case of Section 8.1(f)(ii), be deemed to have disposed of and shall be required to dispose of sufficient Securities (which Securities shall be disposed of in the inverse order in which they were acquired) to cause such Substantial Member, following such disposition, not to be in violation of this Section 8.1, and (ii) in the case of Section 8.1(f)(iii), follow the process as reasonably determined by the Board to cause such Substantial Member to remedy or mitigate its violation of Section 8.1(e).  Such disposition or process shall be deemed to occur simultaneously with the Transfer giving rise to the application of this provision, and in the case of clause (i) in the preceding sentence, such number of Securities that are deemed to be disposed of shall be considered Excess Securities and shall be disposed of through the Agent as provided in Sections 8.1(f)(ii) and 8.1(f)(iv), except that the maximum aggregate amount payable either to such Substantial Member, or to such other Person that was the direct holder of such Excess Securities, in connection with such sale shall be the fair market value of such Excess Securities, as determined in good faith by the Board, at the time of the purported Transfer.  All expenses incurred by the Agent in disposing of such Excess Securities shall be paid out of any amounts due such Substantial Member or such other Person.  The purpose of this Section 8.1(f)(v) is to extend the restrictions in Sections 8.1(e), 8.1(f)(ii), and 8.1(f)(iii) to situations in which there is a Prohibited Transfer without a direct Transfer of Securities, and this Section 8.1(f)(v), along with the other provisions of this Section 8.1, shall be interpreted to produce the same results, with differences as the context requires, as a direct Transfer of Company Securities.

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(vi)        If the Purported Transferee fails to surrender the Excess Securities or the proceeds of a sale thereof to the Agent within thirty (30) days from the date on which the Company makes a written demand pursuant to Sections 8.1(f)(ii) or 8.1(f)(iii), then the Company shall use its best efforts to enforce the provisions hereof, including the institution of legal proceedings to compel the surrender.  Nothing in this Section 8.1(f)(vi) shall (i) be deemed to be inconsistent with any Transfer of the Excess Securities provided in this Section 8.1 to be void ab initio, or (ii) preclude the Company in its discretion from immediately bringing legal proceedings without a prior demand.  The Board may authorize such additional actions as it deems advisable to give effect to the provisions of this Section 8.1.

(vii)       The Company shall make the written demand described in Sections 8.1(f)(ii) or 8.1(f)(iii), as applicable, within thirty (30) days of the date on which the Board determines that the attempted Transfer would result in Excess Securities.  The failure by the Company to act within the time periods set forth in Section 8.1(f) shall constitute a waiver of any rights of the Company described in clauses (ii) through (vi) of this Section 8.1(f).

(viii)      For the avoidance of doubt, any Transfer permitted by Section 8.1(e) and this Section 8.1(f) shall be subject to the provisions of Sections 8.1(a) – (c).

(g)          Obligation to Provide Information.  At the request of the Company, any Person that is a beneficial, legal or record holder of Company Securities, and any proposed transferor or transferee and any Person controlling, controlled by or under common control with the proposed transferor or transferee, shall provide such information as the Company may reasonably request as may be necessary from time to time in order to determine compliance with this Section 8.1.

(h)          Board Authority.

(i)          The Board shall have the power to interpret or determine in its sole discretion all matters necessary for assessing compliance with this Section 8.1, including, without limitation, (i) the identification of Substantial Members, (ii) whether a Transfer is a Prohibited Transfer, (iii) whether to exempt a Transfer, (iv) the Percentage Equity Ownership of any Substantial Member, (v) whether an instrument constitutes a Company Security, (vi) the amount (or fair market value) due to a Purported Transferee pursuant to clause (B) of Section 8.1(f)(iv), and (vii) any other matters which the Board determines to be relevant; and the good faith determination of the Board on such matters shall be conclusive and binding for all the purposes of this Section 8.1.

(ii)         In addition, the Board may, to the extent permitted by law, from time to time establish, modify, amend or rescind this Agreement or any regulations and procedures of the Company not inconsistent with the provisions of this Section 8.1 for purposes of determining whether any Transfer of Company Securities would jeopardize the Company’s ability to preserve and use the Tax Benefits and for the orderly application, administration and implementation of this Section 8.1.

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(iii)        Nothing contained in this Section 8.1 shall limit the authority of the Board to take such other action to the extent permitted by law as it deems necessary or advisable to protect the Company and its Members in preserving the Tax Benefits.  Without limiting the generality of the foregoing, in the event of a change in law making one or more of the following actions necessary or desirable, the Board may, by adopting a written resolution, (i) modify the ownership interest percentage in the Company or the Persons covered by this Section 8.1, (ii) modify the definitions of any terms set forth in this Section 8.1 or (iii) modify the terms of this Section 8.1 as appropriate, in each case, in order to prevent an ownership change for purposes of section 382 of the Code as a result of any changes in applicable Treasury Regulations or otherwise; provided, however, that the Board shall not cause there to be such modification unless it determines, by adopting a written resolution, that such action is reasonably necessary or advisable to preserve the Tax Benefits or that the continuation of these restrictions is no longer reasonably necessary for the preservation of the Tax Benefits.  The Members shall be notified of such determination through such method of notice as the Secretary of the Company shall deem appropriate.

(iv)        In the case of an ambiguity in the application of any of the provisions of this Section 8.1, including any definition used herein, the Board shall have the power to determine the application of such provisions with respect to any situation based on its reasonable belief, understanding or knowledge of the circumstances.  In the event this Section 8.1 requires an action by the Board but fails to provide specific guidance with respect to such action, the Board shall have the power to determine the action to be taken so long as such action is not contrary to the provisions of this Section 8.1. All such actions, calculations, interpretations and determinations that are done or made by the Board in good faith shall be conclusive and binding on the Company, the Agent, and all other parties for all other purposes of this Section 8.1. The Board may delegate all or any portion of its duties and powers under this Section 8.1 to a committee of the Board as it deems necessary or advisable and, to the fullest extent permitted by law, may exercise the authority granted by this Section 8.1 through duly authorized officers or agents of the Company.  Nothing in this Section 8.1 shall be construed to limit or restrict the Board in the exercise of its fiduciary duties under applicable law.

8.2         Right of First Offer.

(a)          Subject to Sections 8.1 and 8.4, if at any time a Member or Group of Members, in one transaction, or a series of related transactions, proposes to Transfer more than five percent (5%) of the outstanding Units of the Company (calculated on a fully-diluted basis, excluding any Units issued or issuable pursuant to an Equity Incentive Plan) to any Person other than a Permitted Transferee, such Member (the “Offering Member”) shall deliver to each Member, who is in the Majority Investor Group, determined as of such date (collectively, the “ROFO Recipients”), and to the Company written notice (the “Offer Notice”), setting forth such Offering Member’s intention to effect such a Transfer, the number of Units proposed to be Transferred (the “Offered Securities”), the proposed purchase price therefor (the “First Offer Price”), and the other material terms and conditions of the proposed Transfer, and offering the ROFO Recipients the right to purchase the Offered Securities (the “First Offer”) in accordance with the terms set forth in this Section 8.2.

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(b)          Subject to Section 8.1(e), each ROFO Recipient shall have the option to purchase, at the First Offer Price and otherwise on the terms and conditions described in the Offer Notice, up to a number of Offered Securities equal to the product of (A) the total number of Offered Securities and (B) a fraction, the numerator of which is the number of Units beneficially owned by such ROFO Recipient as of the applicable Transfer date, and the denominator of which is the total number of Units beneficially owned by all ROFO Recipients as of such date, excluding for purposes of this clause (B), Units issued or issuable to a ROFO Recipient pursuant to an Equity Incentive Plan (such amount of Offered Securities, the “ROFO Portion”).  Each ROFO Recipient shall, within ten (10) Business Days from receipt of the Offer Notice, send irrevocable written notice (a “ROFO Acceptance Notice”) to the Offering Member and the Company indicating whether it has accepted the First Offer and if so, the maximum number of Offered Securities sought to be purchased.  For the avoidance of doubt, a ROFO Recipient shall be deemed to have waived its right to participate in the First Offer if it fails to deliver a ROFO Acceptance Notice within the time period prescribed in this Section 8.2(b).

(c)          If any ROFO Recipient does not accept the First Offer with respect to the entire ROFO Portion such ROFO Recipient is entitled to purchase pursuant to Section 8.2(b) or such ROFO Recipient is not permitted to acquire Offered Securities as a result of the limitations set forth in Section 8.1(e), then the Offering Member shall offer to each ROFO Recipient which elected to purchase the entirety of its respective ROFO Portion to the extent such ROFO Recipient is not so limited by Section 8.1(e), by written notice to each such ROFO Recipient (an “Second Offer Notice”), the right to purchase that percentage of the remaining Offered Securities not so subscribed for (for the purposes of this Section 8.2(c), the “Excess Offered Securities”) determined by dividing (A) the total number of outstanding Units beneficially owned by such ROFO Recipient by (B) the total number of outstanding Units then owned by all fully participating ROFO Recipients who elected to purchase Offered Securities, excluding, in each case, Units issued or issuable to a ROFO Recipient pursuant to an Equity Incentive Plan.  The right of each such ROFO Recipient to purchase the Excess Offered Securities under the immediately preceding sentence shall be exercisable by delivering written notice of the exercise thereof, within five (5) Business Days following the date of the Second Offer Notice, to the Offering Member, which notice shall state the amount of Excess Offered Securities that such ROFO Recipient elects to purchase pursuant to this Section 8.2(c).  The failure of a ROFO Recipient to respond within such five (5) Business Day period shall be deemed to be a waiver of such ROFO Recipient’s rights under this Section 8.2(c); provided, that each ROFO Recipient may waive its rights under this Section 8.2(c) prior to the expiration of such five (5) Business Day period by giving written notice to the Offering Member.

(d)          If following the elections by ROFO Recipients with respect to Excess Offered Securities there remain Offered Securities not accepted by ROFO Recipients, then fully participating ROFO Recipients shall be entitled to purchase remaining Offered Securities in one or more rounds of participation utilizing the procedures set forth in Section 8.2(c) until no Offered Securities are available or the participating ROFO Recipients have failed to elect to purchase all available Offered Securities.

(e)          The Offering Member will be obligated to sell to the ROFO Recipients any Offered Securities which the ROFO Recipients elect to purchase pursuant to this Section 8.2.  If ROFO Recipients, in the aggregate, do not elect to purchase all of the Offered Securities, then, subject to Section 8.3, the Offering Member shall be free for a period of six (6) months from the date ROFO Acceptance Notices were due to be sent to the Offering Member to Transfer any portion of the Offered Securities not purchased by the ROFO Recipients to any other Person for a price not less than the First Offer Price and on terms and conditions not less favorable to the Offering Member in the aggregate than those set forth in the First Offer.  Any Units not so Transferred shall continue to be subject to the provisions of this Section 8.2.

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8.3         Tag-Along.

(a)          If at any time a Member or Group of Members (the “Selling Member(s)”), in one transaction, or a series of related transactions, proposes to Transfer more than twenty-five percent (25%) of the outstanding Common Units of the Company (calculated on a fully-diluted basis, excluding any shares issued pursuant to an Equity Incentive Plan) to any Person other than a Permitted Transferee (the “Proposed Transferee”) in a transaction permitted by Section 8.1(e) and the Selling Member(s) cannot or has not elected to exercise its drag-along rights set forth in Section 8.4, provided, that such Selling Members shall have complied with the terms and conditions set forth in Section 8.2, each other Member (each, a “Tag-Along Holder”) shall, subject to Section 8.1(e), be permitted to participate in such Transfer (a “Tag-Along Sale”) on the terms and conditions set forth in this Section 8.3.

(b)          Prior to the consummation of any such Transfer of outstanding Units described in Section 8.3(a), the Selling Member(s) shall deliver to the Company and each other Member a written notice (a “Sale Notice”) of the proposed Tag-Along Sale subject to this Section 8.3 no later than twenty (20)days prior to the closing date of the Tag-Along Sale.  The Sale Notice shall make reference to the Tag-Along Holders’ rights hereunder and shall describe in reasonable detail: (A) the aggregate number of Units the Proposed Transferee has offered to purchase; (B) the identity of the Proposed Transferee; (C) the proposed date, time and location of the closing of the Tag-Along Sale; (D) the per Unit purchase price and the other material terms and conditions of the Transfer, including a description of any non-cash consideration in sufficient detail to permit the valuation thereof; and (E) a copy of any form of agreement proposed to be executed in connection therewith.

(c)          Each Tag-Along Holder may exercise its right to participate in a Transfer of Units by the Selling Member(s) subject to this Section 8.3 by delivering to the Selling Member(s) a written notice (a “Tag-Along Notice”) stating its election to do so and specifying the number of Units to be Transferred by it no later than ten (10) days after receipt of the Sale Notice (the “Tag-Along Period”).  The offer of each Tag-Along Holder set forth in a Tag-Along Notice shall be irrevocable, and, to the extent such offer is accepted, such Tag-Along Holder shall be bound and obligated to Transfer in the proposed Transfer on the terms and conditions set forth in this Section 8.3.  Each Tag-Along Holder that timely delivers a Tag-Along Notice (a “Tag-Along Seller”) shall have the right to Transfer in a Transfer subject to this Section 8.3 up to the number of Units equal to the product of (x) the aggregate number of Units owned by the Tag-Along Seller and (y) a fraction (A) the numerator of which is equal to the number of Units proposed to be sold by the Selling Member(s) in the Tag-Along Sale, and (B) the denominator of which is equal to the number of Units owned by the Selling Member(s).

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(d)          Each Tag-Along Holder who does not deliver a Tag-Along Notice in compliance with Section 8.3(c) above shall be deemed to have waived all of such Tag-Along Holder’s rights to participate in such Transfer, and the Selling Member(s) shall (subject to the rights of any other Tag-Along Seller) thereafter be free to Transfer to the Proposed Transferee its Units at a per Unit price that is no greater than the per Unit price set forth in the Sale Notice and on other terms and conditions which are not materially more favorable to the Selling Member(s) than those set forth in the Sale Notice without any further obligation to the non-accepting Tag-Along Holders.  The Proposed Transferee shall not be obligated to purchase a number of Units exceeding that set forth in the Sale Notice and, in the event such Proposed Transferee elects to purchase less than all of the additional Units sought to be Transferred by all Tag-Along Sellers, the aggregate number of Units to be Transferred by the Selling Member(s) and the Tag-Along Sellers shall be reduced on a pro rata basis (based on the number of Units sought to be Transferred by each such Selling Member and Tag-Along Seller).

(e)          Each Tag-Along Seller shall receive the same consideration per Unit as the Selling Member(s) after deduction of such Tag-Along Seller’s proportionate share of the related expenses in accordance with Section 8.3(g) below.

(f)          Each Tag-Along Seller shall make or provide the same representations, warranties, covenants, indemnities and agreements as the Selling Member(s) makes or provides in connection with the Tag-Along Sale (except that in the case of representations, warranties, covenants, indemnities and agreements pertaining specifically to the Selling Member(s), the Tag-Along Seller shall make the comparable representations, warranties, covenants, indemnities and agreements pertaining specifically to itself); provided,that all representations, warranties, covenants and indemnities shall be made by each Selling Member and each Tag-Along Seller severally and not jointly and any indemnification obligation in respect of breaches of representations and warranties shall be pro rata based on the consideration received by each Selling Member and each Tag-Along Seller, in each case, in an amount not to exceed the aggregate proceeds actually received by each such Selling Member and Tag-Along Seller in connection with any Tag-Along Sale.

(g)          The fees and expenses of the Selling Member(s) incurred in connection with a Tag-Along Sale and for the benefit of the Selling Member(s) and the Tag-Along Sellers as determined in good faith by the Board, excluding any director appointed or nominated by any Selling Member(s) or its Affiliates (it being understood that costs incurred by or on behalf of a Selling Member for its sole benefit will not be considered to be for the benefit of the Selling Member(s) and the Tag-Along Sellers), to the extent not paid or reimbursed by the Company or the Proposed Transferee, shall be shared by the Selling Member(s) and the Tag-Along Sellers on a pro rata basis, based on the aggregate consideration received by each such Selling Member or Tag-Along Seller; provided, that no Tag-Along Seller shall be obligated to make or reimburse any out-of-pocket expenditure prior to the consummation of the Tag-Along Sale.

(h)          Each Tag-Along Seller shall take all actions as may be reasonably necessary to consummate the Tag-Along Sale, including entering into customary agreements and delivering certificates and instruments, in each case consistent with the agreements being entered into and the certificates being delivered by the Selling Member(s).

(i)           The Selling Member(s) shall have one hundred and twenty (120) days following the expiration of the Tag-Along Period in which to Transfer the Units described in the Sale Notice to be sold by the Tag-Along Sellers, on the terms set forth in the Sale Notice (which such one hundred and twenty (120) day period may be extended for a reasonable time not to exceed an additional one hundred and fifty (150) days to the extent reasonably necessary to obtain any required government approvals).  If, at the end of such period, the Selling Member(s) has not completed such Transfer, the Selling Member(s) may not then effect a Transfer of the Units subject to this Section 8.3 without again fully complying with the provisions of this Section 8.3.

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(j)           If the Selling Member Transfers to the Proposed Transferee any of its shares in breach of this Section 8.3, then each Tag-Along Holder shall have the right to Transfer to the Selling Member(s), and the Selling Member(s) undertakes to purchase from each Tag-Along Holder, the number of Units that such Tag-Along Holder would have had the right to Transfer to the Proposed Transferee pursuant to this Section 8.3, for a per Unit amount and form of consideration and upon the terms and conditions on which the Proposed Transferee bought such Units from the Selling Member(s), but without indemnity being granted by any Tag-Along Holder to the Selling Member(s); provided,that nothing contained in this Section 8.3(j) shall preclude any Tag-Along Holder from seeking alternative remedies against such Selling Member(s) as a result of its breach of this Section 8.3.  The Selling Member(s) shall also reimburse each Tag-Along Holder for any and all reasonable and documented out-of-pocket fees and expenses, including reasonable legal fees and expenses, incurred pursuant to the exercise or the attempted exercise of the Tag-Along Holder’s rights hereunder.

8.4         Drag-Along Rights.

(a)          If at any time one or more Members who together own more than sixty percent (60%) of the outstanding Units (excluding any Units issued or issuable pursuant to an Equity Incentive Plan) (a “Dragging Member”) receives a bona fide offer from an unaffiliated third party purchaser to consummate, in one transaction, or a series of related transactions, the Sale of the Company, whether pursuant to a Unit purchase, asset purchase, merger or otherwise (a “Drag-Along Sale”), the Dragging Member shall have the right to require that each other Member (each, a “Drag-Along Member”) participate in such transfer in the manner set forth in this Section 8.4.  Notwithstanding anything to the contrary in this Agreement, each Drag-Along Member shall vote (or cause to be voted or provide consent with respect to) in favor of the transaction and take all actions to waive any dissenters, appraisal or other similar rights.

(b)          The Dragging Member shall exercise its rights pursuant to this Section 8.4 by delivering a written notice (the “Drag-Along Notice”) to the Company no later thantwenty (20) days prior to the closing date of such Drag-Along Sale.  The Company will promptly deliver a copy of the Drag-Along Notice to each Drag-Along Member.  The Drag-Along Notice shall make reference to the Dragging Member’s rights and obligations hereunder and shall describe in reasonable detail: (A) the number of Units to be sold by the Dragging Member, if the Drag-Along Sale is structured as a Transfer of Units; (B) the identity of the third party purchaser; (C) the proposed date, time and location of the closing of the Drag-Along Sale; (D) the per Unit purchase price and the other material terms and conditions of the Transfer, including a description of any non-cash consideration in sufficient detail to permit the valuation thereof; and (E) a copy of any form of agreement proposed to be executed in connection therewith to the extent available.

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(c)          The consideration to be received by a Drag-Along Member shall be the same form and amount of consideration per Unit to be received by the Dragging Member (or, if the Dragging Member is given an option as to the form and amount of consideration to be received, the same option shall be given), and the terms and conditions of such Transfer shall, except as otherwise provided in the immediately succeeding sentence, be the same as those upon which the Dragging Member Transfers its Units.  Any (A) representations and warranties to be made or provided by a Drag-Along Member in connection with such Drag-Along Sale shall be limited to representations and warranties related to such Drag-Along Member’s authority, ownership and the ability to convey title to its Units and, with respect thereto, shall be the same representations and warranties that the Dragging Member makes or provides with respect to its Units, (B) Drag-Along Member will not be required to agree to any non-competition, non-solicitation or similar restrictions in connection with such Drag-Along Sale, and (C) covenants, indemnities and agreements made by the Drag-Along Members shall be the same covenants, indemnities and agreements as the Dragging Member makes or provides in connection with the Drag-Along Sale, except that with respect to covenants, indemnities and agreements pertaining specifically to the Dragging Member, the Drag-Along Member shall make the comparable covenants, indemnities and agreements pertaining specifically to itself; provided,that any indemnification obligation relating to the Company shall be pro rata based on the consideration received by the Dragging Member and each Drag-Along Member, in each case in an amount not to exceed the aggregate proceeds actually received by the Dragging Member and each such Drag-Along Member in connection with the Drag-Along Sale.

(d)          Each Member shall take all actions as may be reasonably necessary to consummate the Drag-Along Sale, including entering into customary agreements and delivering certificates and instruments, in each case consistent with the agreements being entered into and the certificates being delivered by the Dragging Member and subject to the terms of this Section 8.4.

(e)          The fees and expenses of the Dragging Member incurred in connection with a Drag-Along Sale and for the benefit of all Members as determined in good faith by the Board, excluding any director appointed or nominated by any Dragging Member or its Affiliates (it being understood that costs incurred by or on behalf of a Dragging Member for its sole benefit will not be considered to be for the benefit of all Members), to the extent not paid or reimbursed by the Company or the third party purchaser, shall be shared by all Members on a pro rata basis, based on the aggregate consideration received by each Member; provided,that no Member shall be obligated to make or reimburse any out-of-pocket expenditure prior to the consummation of the Drag-Along Sale.

(f)          The Dragging Member shall have one hundred and twenty (120) days following the date of the Drag-Along Notice in which to consummate the Drag-Along Sale, on the terms set forth in the Drag-Along Notice (which such period may be extended for a reasonable time not to exceed an additional one hundred and eighty (180) days to the extent reasonably necessary to obtain any required government approvals).  If, at the end of such period, the Dragging Member has not completed the Drag-Along Sale, the Dragging Member may not then effect a transaction subject to this Section 8.4 without again fully complying with the provisions of this Section 8.4.

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8.5         Rights to Participate in Certain Offerings.

(a)          Offering Notice.  Except for (i) Company Securities which may be issued pursuant to an Equity Incentive Plan, (ii) a Unit split, dividend, reorganization or recapitalization applicable to all Common Units, (iii) Company Securities issued upon exercise of the Warrants or upon exercise, conversion or exchange of any other security or obligation of the Company (such security or obligation, a “Unit Equivalent”), issued in accordance with the terms of this Agreement, (iv) Company Securities issued in consideration of an acquisition, business combination or debt financing (whether pursuant to an equity purchase, asset purchase, merger or otherwise) approved by the Board, and, if applicable, the Members, in accordance with the terms of this Agreement, by the Company of another Person, (v) issuances to banks, equipment lessors or other financial institutions (including, for the avoidance of doubt, hedge funds), or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board, (vi) issuances as consideration approved by the Board payable to a third party that is not an Affiliate of the Company for any other business relationship the primary purpose of which is not to raise capital, including for the acquisition or license of technology by the Company or its Subsidiaries, joint venture or development activities or the distribution, supply or manufacture of the Company’s or its Subsidiaries’ products and services, (vii) issuances to the public pursuant to an effective Registration Statement, and (viii) solely with respect to issuances by a Subsidiary of the Company, issuances to the Company or any other wholly-owned Subsidiary of the Company, if the Company or any of its Subsidiaries wishes to issue any equity securities of the Company or such Subsidiary (collectively, “New Securities”) to any Person (the “Subject Purchaser”), then the Company shall (or shall cause its applicable Subsidiary to) first offer such New Securities to each of the Members holding Common Units who are Accredited Investors (other than Members who hold only Units or Unit Equivalents under an Equity Incentive Plan) (each, a “Preemptive Rightholder”, and collectively, the “Preemptive Rightholders”) by sending written notice (the “New Issuance Notice”) to the Preemptive Rightholders at least fifteen (15) Business Days prior to such issuance of New Securities, which New Issuance Notice shall state, in reasonable detail, the material terms and conditions of such issuance, including (x) the number of New Securities proposed to be issued and (y) the proposed purchase price per security of the New Securities (the “Proposed Price”).  Upon delivery of the New Issuance Notice, such offer shall be irrevocable unless and until the rights provided for in Section 8.5(b) shall have been waived or shall have expired.

(b)          Exercise.

(i)          For a period of ten (10) Business Days after the giving of the New Issuance Notice pursuant to Section 8.5(a), each of the Preemptive Rightholders shall have the right, but not the obligation, to purchase up to its Proportionate Percentage of the New Securities, at a purchase price equal to the Proposed Price and upon the same terms and conditions set forth in the New Issuance Notice.  Each such Preemptive Rightholder shall have the right to purchase up to that percentage of the New Securities determined by dividing (x) the total number of Units then owned by such Preemptive Rightholder exercising its rights under this Section 8.5(b) by (y) the total number of Units owned by all of the Preemptive Rightholders (the “Proportionate Percentage”; provided, that, for purposes of calculating each Proportionate Percentage, any Units issued or issuable to a Preemptive Rightholder pursuant to an Equity Incentive Plan shall be excluded from such calculation).

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(ii)         The right of each Preemptive Rightholder to purchase the New Securities under clause (i) above shall be exercisable by delivering written notice of the exercise thereof, prior to the expiration of the ten (10) Business Day period referred to in Section 8.5(b)(i) to the Company or its applicable Subsidiary, which notice shall state the amount of New Securities that such Preemptive Rightholder elects to purchase pursuant to Section 8.5(b)(i).  The failure of a Preemptive Rightholder to respond within such ten (10) Business Day period shall be deemed to be a waiver of such Preemptive Rightholder’s rights under Section 8.5(b)(i); provided, that each Preemptive Rightholder may waive its rights under Section 8.5(b)(i) prior to the expiration of such ten (10) Business Day period by giving written notice to the Company or the applicable Subsidiary.

(iii)        If any Preemptive Rightholder does not fully subscribe for the number or amount of New Securities that it, she or he is entitled to purchase pursuant to Section 8.5(b)(i), then the Company shall (or shall cause its applicable Subsidiary to) offer to each fully participating Preemptive Rightholder which elected to purchase New Securities, by written notice to each such Preemptive Rightholder (an “Excess New Securities Notice”), the right to purchase that percentage of the remaining New Securities not so subscribed for (for the purposes of this Section 8.5(b)(iii), the “Excess New Securities”) determined by dividing (x) the total number of Units then owned by such fully participating Preemptive Rightholder by (y) the total number of Units then owned by all fully participating Preemptive Rightholders who elected to purchase Excess New Securities (excluding, in the case of both clauses (x) and (y), Units issued or issuable to a Preemptive Rightholder pursuant to an Equity Incentive Plan).  The right of each such Preemptive Rightholder to purchase the Excess New Securities under the immediately preceding sentence shall be exercisable by delivering written notice of the exercise thereof, within five (5) Business Days following the date of the Excess New Securities Notice, to the Company or its applicable Subsidiary, which notice shall state the amount of Excess New Securities that such Preemptive Rightholder elects to purchase pursuant to this Section 8.5(b)(iii).  The failure of a Preemptive Rightholder to respond within such five (5) Business Day period shall be deemed to be a waiver of such Preemptive Rightholder’s rights under this Section 8.5(b)(iii); provided, that each Preemptive Rightholder may waive its rights under this Section 8.5(b)(iii) prior to the expiration of such five (5) Business Day period by giving written notice to the Company or the applicable Subsidiary.

(c)          Specified Issuance.  Notwithstanding the requirements of Section 8.5(a), the Company or its applicable Subsidiary may proceed with an issuance of New Securities that would otherwise be subject to Section 8.5(a) prior to having complied with the provisions of Section 8.5(a) (such issuance, a “Specified Issuance”) (but subject to the applicable approvals of the Board and the Members in accordance with this Agreement); provided, that the Company shall (or shall cause its applicable Subsidiary to):

(i)          provide to each Preemptive Rightholder as of the date of the Specified Issuance prompt written notice of such Specified Issuance;

(ii)         within a reasonable period of time (but in any event not more than fifteen (15) Business Days following such Specified Issuance), offer, in writing, to issue to each Preemptive Rightholder its Proportionate Percentage of the New Securities (including New Securities issued pursuant to the Specified Issuance and pursuant to this clause (ii)), at the same price per New Security and on the same terms and conditions with respect to such New Securities as the purchaser paid in such Specified Issuance; and

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(iii)        keep such offer open for a period of no less than ten (10) Business Days, during which period, each Preemptive Rightholder may accept such offer by sending a written notice of exercise to the Company or its applicable Subsidiary committing to purchase in accordance with the procedures set forth in Section 8.5(b), an amount of such New Securities (not to exceed the amount specified in the offer made pursuant to Section 8.5(c)(ii));

provided, further, that (A) for all purposes under this Agreement, any issuance of New Securities to a Preemptive Rightholder pursuant to this Section 8.5(c) shall be deemed to have occurred on the date of the consummation of such Specified Issuance and (B) during the period commencing on the consummation of such Specified Issuance and ending on the earlier of (x) the consummation of the issuance of New Securities to a Preemptive Rightholder pursuant to this Section 8.5(c) and (y) the expiration of the ten (10) Business Day period specified in clause (iii) above, the New Securities issued pursuant to this Section 8.5(c) shall not be taken into account in calculating the Proportionate Percentage of any Member for any purposes under this Agreement.

(d)          Closing.  The closing of the purchase of New Securities subscribed for by the Preemptive Rightholders under (i) Section 8.5(b) shall be held at the executive office of the Company at 11:00 a.m., local time, on (A) the fifteenth (15^th) Business Day after the giving of the New Issuance Notice pursuant to Section 8.5(a), if the Preemptive Rightholders elect to purchase all of the New Securities under Section 8.5(b), or (B) the date of the closing of the sale to the Subject Purchaser made pursuant to Section 8.5(a) if the Preemptive Rightholders elect to purchase some, but not all, of the New Securities under Section 8.5(b), (ii) Section 8.5(c) shall be held at the executive office of the Company at 11:00 a.m., local time, on the fifteenth (15^th) Business Day after the date of the offer specified under Section 8.5(c)(ii), or (iii) in relation to both (i) and (ii), at such other time and place as the parties to the transaction may reasonably agree.  At such closing, the Company shall (or shall cause its applicable Subsidiary to) deliver certificates (to the extent that the Company or its applicable Subsidiary has certificated Units) representing the New Securities to the participating Preemptive Rightholders, and such New Securities shall be issued free and clear of all liens (other than those arising hereunder or pursuant to applicable law and those attributable to actions by the purchasers thereof) and the Company shall (or shall cause its applicable Subsidiary to) so represent and warrant, and further represent and warrant that such New Securities shall be, upon issuance thereof to the Preemptive Rightholders and after payment therefor, duly authorized, validly issued, fully paid and non-assessable.  Each Preemptive Rightholder purchasing the New Securities shall deliver at the closing payment in full in immediately available funds for the New Securities purchased by him, her or it.  At such closing, all of the parties to the transaction shall execute such additional documents as are otherwise necessary to effectuate the closing.  Notwithstanding the foregoing, if the closing of a sale or issuance of New Securities is not consummated within a six (6)-month period (plus such number of additional days (if any) necessary to allow the expiration or termination of all waiting periods under antitrust laws applicable to such sale) after the date upon which the New Issuance Notice is delivered or if the principal terms of such sale change such that the terms are, in the aggregate, less favorable in any material respect to the Preemptive Rightholders than those in the New Issuance Notice, then the restrictions provided for herein shall again become effective, and no issuance or sale of New Securities may be made thereafter by the Company or its applicable Subsidiary without again offering the same to the Preemptive Rightholders in accordance with this Section 8.5.  Notwithstanding any other provision of this Section 8.5, there shall be no liability on the part of the Company, any of its Subsidiaries or any Member to any Preemptive Rightholder arising from the failure of the Company or its applicable Subsidiary to consummate the sale of New Securities for any reason.

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(e)          Assignment of Preemptive Rights.  The rights contained in this Section 8.5 may be assigned or otherwise conveyed to one (1) or more of the applicable Preemptive Rightholder’s controlled Affiliates who, in each case, are Accredited Investors; provided, that such assignment or conveyance is effected in compliance with the terms and conditions of this Agreement applicable to the assignment or Transfer of Units.

8.6         Substituted Member.  Except as otherwise provided in this Agreement, each Person to whom any Unit is Transferred in accordance with the provisions of this Article VIII shall agree in writing to be bound by the provisions of this Agreement as a holder of such Units by execution of a joinder agreement in the form provided by the Board.  Upon compliance with this Section 8.6 and entry into such joinder, such Person shall become a Substituted Member entitled to all the rights of a Member with respect to such Unit, and the Schedule of Members attached hereto shall be updated to reflect the name, address and Units of such Substituted Member and to eliminate the name and address of and other information relating to the transferee with regard to the Transferred Units.

8.7         Effect of Transfer.  Following a Transfer of any Unit that is permitted under this Article VIII, the transferee of such Unit shall be treated as having made all of the Capital Contributions in respect of, and received all of the Distributions received in respect of, such Unit, and shall receive allocations and Distributions under Article IV and Article IX in respect of such Unit as if such transferee were a Member.

8.8         Additional Transfer Restrictions.  Notwithstanding any other provisions of this Article VIII, no Transfer of Units or any other interest in the Company may be made unless in the opinion of counsel (who may be counsel for the Company), reasonably satisfactory in form and substance to the Board and counsel for the Company (which opinion requirement may be waived, in whole or in part, at the sole and absolute discretion of the Board), such Transfer would not (a) violate any federal securities laws or any state securities or “blue sky” laws (including any investor suitability standards) applicable to the Company or the interest to be Transferred or (b) cause the Company to be required to register as an “investment company” under the United States Investment Company Act of 1940.

8.9         Transfer Fees and Expenses.  Other than any Transfer pursuant to Sections 8.2, 8.3, 8.4 or 8.5, the transferor and transferee of any Units or other interest in the Company shall be jointly and severally obligated to reimburse the Company for all reasonable expenses (including attorneys’ fees and expenses) incurred by or on behalf of the Company in connection with any Transfer or proposed Transfer, whether or not consummated.

8.10       Reorganization Date of Transfers.  Any Transfer and any related admission of a Person as a Member in compliance with this Article VIII shall be deemed effective on such date that the transferee or Successor in Interest complies with the requirements of this Agreement.

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8.11       Effect of Death or Incapacity.  Except as otherwise provided herein, the death or incapacity of a Member shall not, in and of itself, dissolve or terminate the Company.  In the event of such death or incapacity, the executor, administrator, guardian, trustee or other personal representative of the deceased or incapacitated Member shall be deemed to be the assignee of such Member’s interest and may, subject to the terms and conditions set forth in Section 8.6, become a Substituted Member.

8.12       Board Consent.  The Board hereby consents to a Transfer of Units to any persons to whom a transfer of Units is expressly permitted by the terms of this Agreement.

ARTICLE IX

DISSOLUTION AND LIQUIDATION

9.1         Dissolution.  The Company shall not be dissolved by the admission of Additional Members or Substituted Members.  The Company shall dissolve, and its affairs shall be wound up upon the first of the following to occur:

(a)          Subject to the express provisions of this Agreement, an election to dissolve and wind up by the Board;

(b)          at any time there are no members unless the Company is continued under the Delaware Act; or

(c)          the entry of a decree of judicial dissolution of the Company under Section 17-802 of the Delaware Act; provided, that, notwithstanding anything contained herein to the contrary, no Member shall make an application for the dissolution of the Company pursuant to Section 17-802 of the Delaware Act without the express written consent of the Board.

Except as otherwise set forth in this Section 9.1, the Company is intended to have perpetual existence.  The death, retirement, resignation, Bankruptcy or dissolution of a Member shall not, in and of itself, cause a dissolution of the Company, and the Company shall continue in existence subject to the terms and conditions of this Agreement.

9.2         Liquidation and Termination.

(a)          On the dissolution of the Company, the Board shall act as liquidator or (in its sole and absolute discretion) may appoint one or more representatives, Members or other Persons as liquidating trustee (any of the foregoing, “liquidators”).  The liquidators shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Delaware Act.  The costs of liquidation shall be borne as a Company expense.  Until final distribution, the liquidators shall continue to operate the Company with all of the power and authority of the Board.  The steps to be accomplished by the liquidators are as follows:

(i)          the liquidators shall satisfy from Company assets all of the debts, liabilities and obligations of the Company (including all expenses incurred in liquidation) either by payment or by the making of reasonable provision for payment and discharge thereof (including the establishment of a cash fund for contingent liabilities in such amount and for such term as the liquidators may reasonably determine); and

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(ii)         after payment or reasonable provision for payment of all of the Company’s liabilities has been made in accordance with Section 9.2(a)(i), all remaining assets of the Company shall be distributed in accordance with Section 4.1 (taking into account, if applicable, the provisions of Section 4.4), after giving effect to all prior Distributions, in such a manner that, immediately before distribution of such remaining assets, each Member shall, to the greatest extent possible, have received a net amount that would be distributed to such Member in accordance with Section 4.1 (after satisfaction of any financial obligations of each Member to the Company under any provisions of this Agreement).

9.3         Complete Distribution.  The distribution to a Member in accordance with the provisions of Section 9.2 constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member of its interest in the Company and all the Company’s property and constitutes a compromise to which all Members have consented within the meaning of the Delaware Act.  If a Member returns funds to the Company pursuant to any provision of this Agreement or the Delaware Act and such funds exceed such Member’s pro rata share of all funds required to be returned to the Company (an “Over-Returning Member”), then the Company and the Over-Returning Member shall have a claim against each Member that has received and retained Distributions from the Company in excess of the amounts to which such Member is entitled pursuant to this Agreement or the Delaware Act (each, an “Over-Distributed Member” with any excess retained thereby being such Member’s “Excess Retained Funds”) for the return to the Company, and the application thereby in settlement among all Over-Returning Members, of an amount equal to the Over-Distributed Member’s Excess Retained Funds.  For the avoidance of doubt, the liability of each Over-Distributed Member with respect to any such claim shall be several and not joint and shall be limited to the Excess Retained Funds of such Over-Distributed Member.

9.4         Cancellation of Certificate.  On completion of (i) the distribution of Company assets as provided herein and (ii) the other winding up activities of the Company, the Company is terminated (and the Company shall not be terminated prior to such time), and the Board (or such other Person or Persons as the Delaware Act may require or permit) shall file a certificate of cancellation with the Secretary of State of the State of Delaware, cancel any other filings made pursuant to this Agreement that are or should be canceled and take such other actions as may be necessary to terminate the Company.  The Company shall be deemed to continue in existence for all purposes of this Agreement until it is terminated pursuant to this Section 9.4.

9.5         Reasonable Time for Winding Up.  A reasonable time shall be allowed for the orderly winding up of the business and affairs of the Company and the liquidation of its assets pursuant to Section 9.2 to minimize any losses otherwise attendant upon such winding up.

9.6         Return of Capital.  The liquidators shall not be personally liable for the return of Capital Contributions or any portion thereof to the Members (it being understood that any such return shall be made solely from Company assets).

9.7         HSR Act.  Notwithstanding any other provision in this Agreement, in the event that the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) is applicable to any Member by reason of the fact that any assets of the Company shall be distributed to such Member in connection with the dissolution of the Company, the winding up of the Company shall not be consummated until such time as the applicable waiting periods (and extensions thereof) under the HSR Act have expired or otherwise been terminated with respect to each such Member.

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9.8         Termination.  This Agreement shall terminate upon the consummation of an Initial Public Offering of the Company.

ARTICLE X

CERTAIN AGREEMENTS

10.1       Registration Rights.

(a)          Demand Registration.

(i)          At any time and from time to time commencing one hundred and eighty (180) days after the consummation of an Initial Public Offering upon written notice to the Company (a “Demand Notice”) delivered by a Qualified Member or Qualified Members requesting that the Company effect the registration (a “Demand Registration”) under the Securities Act (other than pursuant to a Registration Statement on Form S-4 or Form S-8 or any similar or successor form under the Securities Act) of any or all of the Registrable Securities held by such Qualified Member(s), the Company shall promptly (but in any event, not later than five (5) Business Days following the Company’s receipt of such Demand Notice) give written notice of the receipt of such Demand Notice to all other Members that, to its knowledge, hold Registrable Securities (each, a “Demand Eligible Member”).  The Company shall use its commercially reasonable efforts, within thirty (30) days following the receipt of such Demand Notice (subject to compliance with any applicable covenants in any underwriting agreement for a previous registration effected under this Section 10.1(a) or under Section 10.1(b)), file the appropriate Registration Statement (the “Demand Registration Statement”) subject to Section 10.1(a)(ii) and use its commercially reasonable efforts to effect, at the earliest practicable date, the registration under the Securities Act and under the applicable state securities laws of (A) the Registrable Securities which the Company has been so requested to register by the Qualified Member(s) in the Demand Notice, (B) all other Registrable Securities of the same class or series as those requested to be registered by the Qualified Member(s) that the Company has been requested to register by the Demand Eligible Members by written request (the “Demand Eligible Member Request”) given to the Company within twenty (20) days following the receipt of such Demand Notice, and (C) any Registrable Securities to be offered and sold by the Company, in each case subject to Section 10.1(a)(ii), all to the extent required to permit the disposition (in accordance with the intended methods of disposition) of the Registrable Securities to be so registered.  Notwithstanding anything in this Section 10.1 to the contrary, the Company shall not be obligated to (I) effect more than two (2) Demand Registrations in any six (6)-month period or (II) effect any Demand Registration within ninety (90) days from the date of effectiveness of a Demand Registration Statement.

(ii)         Demand Registration Using Form S-3.  The Company shall effect any requested Demand Registration using Form S-3 whenever the Company is a Seasoned Issuer or a WKSI and is eligible to use such form under applicable rules.

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(iii)        Effectiveness of Demand Registration Statement.  The Company shall use its commercially reasonable efforts to have the Demand Registration Statement declared effective by the Commission and keep the Demand Registration Statement continuously effective under the Securities Act for the period of time necessary for the underwriters or Members to sell all of the Registrable Securities covered by such Demand Registration Statement (including by filing with the Commission a post-effective amendment or a supplement to the Demand Registration Statement or the related Prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Demand Registration Statement, in each case, if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Demand Registration Statement or by the Securities Act, any state securities or “blue sky” laws, or any other rules and regulations thereunder or if otherwise necessary) (the “Effectiveness Period”).  A Demand Registration requested pursuant to this Section 10.1(a) shall not be deemed to have been effected (A) if the Demand Registration Statement is withdrawn without becoming effective, (B) if the Demand Registration Statement has not been declared effective or does not remain effective in compliance with the provisions of the Securities Act and the laws of any state or other jurisdiction applicable to the disposition of the Registrable Securities covered by such Registration Statement for the Effectiveness Period, (C) if, after it has become effective, such Registration Statement is subject to any stop order, injunction or other order or requirement of the Commission or other governmental or regulatory agency or court for any reason other than a violation of applicable law solely by any selling Member and has not thereafter become effective, (D) in the event of an underwritten offering, if the conditions to closing specified in the underwriting agreement entered into in connection with such registration are not satisfied or waived other than by reason of some wrongful act or omission by a selling Member, or (E) if the Company does not include in the applicable Registration Statement any Registrable Securities held by a Member that are required by the terms hereof to be included in such Registration Statement.

(iv)        Priority of Registration.  Notwithstanding any other provision of this Section 10.1(a), if (A) the Qualified Member(s) intend to distribute the Registrable Securities covered by a Demand Registration by means of an underwritten offering and (B) the managing underwriters advise the Company that, in their reasonable view, the number of Registrable Securities proposed to be included in such offering (including Registrable Securities requested by Members to be included in such offering and any securities that the Company or any other Person proposes to be included that are not Registrable Securities) exceeds the number of Registrable Securities that can be sold in such underwritten offering or the number of Registrable Securities proposed to be included in such Demand Registration would adversely affect the price per share of the Registrable Securities proposed to be sold in such underwritten offering (in either situation, the “Maximum Offering Size”), then the Company shall so advise the Qualified Member(s) and the Demand Eligible Members with Registrable Securities requested to be included in such underwritten offering, and shall include in such offering the number of Registrable Securities which can be so sold in the following order of priority, up to the Maximum Offering Size: (1) first, the Registrable Securities requested to be included in such underwritten offering by the Qualified Members and the Demand Eligible Members, allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Qualified Members and Demand Eligible Members on the basis of the number of Registrable Securities requested to be included therein by each such Member, up to the Maximum Offering Size; (2) second, any securities proposed to be registered by the Company; and (3) third, Other Registrable Securities requested to be included in such underwritten offering to the extent permitted hereunder, allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the respective holders of such Other Registrable Securities on the basis of the number of securities requested to be included therein by each such holder.  For any holder of Other Registrable Securities that is a partnership, limited liability company, corporation or other entity, the partners, members, stockholders, Subsidiaries, parents and Affiliates of such holder, or the estates and Family Members of any such partners or members and retired partners or members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “holder”, and any pro rata reduction with respect to such Other Registrable Securities shall be based upon the aggregate amount of securities requested to be included in such registration by all entities and individuals included in such Other Registrable Securities.

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(v)         Underwritten Demand Registration.  The determination of whether any offering of Registrable Securities pursuant to a Demand Registration will be an underwritten offering shall be made in the sole discretion of the Members holding a Majority of Included Registrable Securities included in such underwritten offering, and such Members holding a Majority of Included Registrable Securities shall have the right to (A) determine the plan of distribution, including the price at which the Registrable Securities are to be sold and the underwriting commissions, discounts and fees, and (B) select the investment banker(s) and manager(s) to administer the offering (which shall consist of one or more reputable nationally recognized investment banks reasonably satisfactory to the Company) and one firm of counsel to represent all of the Members (along with any reasonably necessary local counsel), in connection with such Demand Registration; provided, (i) that the Company shall select such investment banker(s) and manager(s) if the Members holding a Majority of Included Registrable Securities cannot so agree on the same within a reasonable time period and (ii) that the Company shall not be obligated to effect any such underwritten offering if the aggregate proceeds expected to be received from the sale of the Registrable Securities requested to be sold in such Demand Registration, in the good faith judgment of the managing underwriter(s) therefor, is less than $25 million.

(vi)        Withdrawal of Registrable Securities.  Any Member whose Registrable Securities were to be included in any such registration pursuant to this Section 10.1(a) may elect to withdraw any or all of its Registrable Securities therefrom, without liability to any of the other Members and without prejudice to the rights of any such Member to include Registrable Securities in any future registration (or registrations), by written notice to the Company delivered prior to the effective date of the relevant Demand Registration Statement.

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(b)          Piggyback Registration.

(i)          Registration Statement on behalf of the Company.  If at any time the Company proposes to file a Registration Statement for an offering of Registrable Securities (for purposes of this section, irrespective of the holders thereof) for cash (excluding an offering in which Demand Eligible Members may make Demand Eligible Member Requests, an Initial Public Offering, an offering relating solely to an employee benefit plan, a dividend reinvestment plan or similar plans, an offering relating to a transaction on Form S-4, a rights offering or an offering on any form of Registration Statement that does not permit secondary sales) (a “Piggyback Registration Statement”), the Company shall give prompt written notice (the “Piggyback Notice”) to all Members that, to its knowledge, hold Registrable Securities (collectively, the “Piggyback Eligible Members”) of the Company’s intention to file a Piggyback Registration Statement reasonably in advance of (and in any event at least ten (10) Business Days before) the anticipated filing date of such Piggyback Registration Statement.  The Piggyback Notice shall offer the Piggyback Eligible Members the opportunity to include for registration in such Piggyback Registration Statement the number of Registrable Securities of the same class and series as those proposed to be registered as they may request, subject to Section 10.1(b)(ii) (a “Piggyback Registration”).  Subject to Section 10.1(b)(ii), the Company shall use its commercially reasonable efforts to include in each such Piggyback Registration such Registrable Securities for which the Company has received written requests (each, a “Piggyback Request”) from Piggyback Eligible Members within five (5) Business Days after giving the Piggyback Notice.  If a Piggyback Eligible Member decides not to include all of its Registrable Securities in any Piggyback Registration Statement thereafter filed by the Company, such Piggyback Eligible Member shall nevertheless continue to have the right to include any Registrable Securities in any subsequent Piggyback Registration Statements or Demand Registration Statements, all upon the terms and conditions set forth herein.  Subject to Section 10.1(b)(ii), the Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register pursuant to the Piggyback Requests, to the extent required to permit the disposition of the Registrable Securities so requested to be registered.

(ii)         Priority of Registration.  If the Piggyback Registration under which the Company gives notice pursuant to Section 10.1(b)(i) is an underwritten offering, and the managing underwriter or managing underwriters of such offering advise the Company and the Piggyback Eligible Members that, in their reasonable view, the amount of securities requested to be included in such registration (including Registrable Securities requested by the Piggyback Eligible Members to be included in such offering and any securities that the Company or any other Person proposes to be included that are not Registrable Securities) exceeds the Maximum Offering Size (which, for the purposes of a Piggyback Registration shall be within a price range acceptable to the Company), then the Company shall so advise all Piggyback Eligible Members with Registrable Securities requested to be included in such Piggyback Registration, and shall include in such offering the number which can be so sold in the following order of priority, up to the Maximum Offering Size: (A) first, the securities that the Company proposes to sell up to the Maximum Offering Size; (B) second, the Registrable Securities requested to be included in such Piggyback Registration, allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Piggyback Eligible Members on the basis of the number of Registrable Securities requested to be included therein by each such Piggyback Eligible Member, up to the Maximum Offering Size; and (C) third, Other Registrable Securities requested to be included in such Piggyback Registration, allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the holders thereof on the basis of the number of securities requested to be included therein by each such holder.  All Piggyback Eligible Members requesting to be included in the Piggyback Registration must sell their Registrable Securities to the underwriters selected as provided in Section 10.1(b)(iv) on the same terms and conditions as apply to the Company if such underwritten offering is consummated, subject to such Members’ right to withdraw described in the immediately succeeding sentences.  Promptly (and in any event within 24 hours of the Company receiving notice) following receipt of notification by the Company from the managing underwriter of a range of prices at which such Registrable Securities are likely to be sold, the Company shall so advise each Piggyback Eligible Member requesting registration in such offering of such range of prices.  If any Piggyback Eligible Member disapproves of the terms of any such underwriting (including the range of prices advised by the underwriter(s) in such offering), such Piggyback Eligible Member may elect to withdraw any or all of its Registrable Securities therefrom, without liability to any of the other Members and without prejudice to the rights of any such Member to include Registrable Securities in any future Piggyback Registration Statement or Demand Registration Statement, by prompt written notice to the Company and the managing underwriter(s) delivered on or prior to the effective date of such Piggyback Registration Statement.  Any Registrable Securities withdrawn from such underwritten offering shall be excluded and withdrawn from the registration.  For any Piggyback Eligible Member that is a partnership, limited liability company, corporation or other entity, the partners, members, stockholders, Subsidiaries, parents and Affiliates of such Piggyback Eligible Member, or the estates and Family Members of any such partners or members and retired partners or members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “Piggyback Eligible Member”, and any pro rata reduction with respect to such “Piggyback Eligible Member” shall be based upon the aggregate amount of securities requested to be included in such registration by all entities and individuals included in such “Piggyback Eligible Member”, as defined in this sentence.

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(iii)        Withdrawal from Registration.  The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 10.1(b) prior to the effective date of the applicable Piggyback Registration Statement, whether or not any Piggyback Eligible Member has elected to include Registrable Securities in such Piggyback Registration Statement, without prejudice, however, to the right of the Members immediately to request that such registration be effected as a registration under Section 10.1(a) to the extent permitted thereunder and subject to the terms set forth therein.  The Company shall promptly give notice of the withdrawal or termination of any registration to each Piggyback Eligible Member who has elected to participate in such registration.  The Registration Expenses of such withdrawn or terminated registration shall be borne by the Company in accordance with Section 10.1(j) hereof.

(iv)        Selection of Bankers and Counsel.  If a Piggyback Registration pursuant to this Section 10.1(b) involves an underwritten offering, the Company shall have the right, in consultation with the Members holding a Majority of Included Registrable Securities included in such underwritten offering, to (A) determine the plan of distribution, including the price at which the Registrable Securities are to be sold and the underwriting commissions, discounts and fees and (B) select the investment banker or bankers and managers to administer the offering, including the lead managing underwriter or underwriters.

(v)         Effect of Piggyback Registration.  No registration effected under this Section 10.1(b) shall relieve the Company of its obligations to effect any registration of the offer and sale of Registrable Securities upon request under Section 10.1(a) (subject to compliance with any applicable covenants in the underwriting agreement for a registration effected under this Section 10.1(b)), and no registration effected pursuant to this Section 10.1(b) shall be deemed to have been effected pursuant to Section 10.1(a).

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(c)          Notice Requirements.  Any Demand Notice, Demand Eligible Member Request or Piggyback Request shall (i) specify the maximum number and class or series of Registrable Securities intended to be offered and sold by the Member making the request, (ii) express such Member’s bona fide intent to offer up to such maximum number of Registrable Securities for distribution, (iii) describe the nature or method of the proposed offer and sale of Registrable Securities (to the extent applicable), and (iv) contain the undertaking of such Member to provide all such information and materials and take all action, in each case, as may reasonably be required in order to permit the Company to comply with all applicable requirements in connection with the registration of such Registrable Securities.

(d)          Suspension Period.  Notwithstanding any other provision of this Section 10.1, the Company shall have the right, but not the obligation, to defer the filing of (but not the preparation of), or suspend the use by the Members of, any Registration Statement for a period of up to ninety (90) days (unless a longer period is consented to by Members holding a Majority of Included Registrable Securities) (i) upon issuance by the Commission of a stop order suspending the effectiveness of such Registration Statement with respect to Registrable Securities or the initiation of proceedings with respect to such Registration Statement under Section 8(d) or 8(e) of the Securities Act, (ii) (x) if the Board determines, in its good faith judgment, that any such registration or offering should not be undertaken because it would reasonably be expected to materially interfere with any material corporate development or plan of the Company or (y) if the Company believes in good faith that it would require the Company (after consultation with external legal counsel), under applicable securities laws and other laws, to make disclosure of material nonpublic information that would not otherwise be required to be disclosed at that time and the Company believes in good faith that such disclosures at that time would not be in the Company’s best interests; provided, that the exception set forth in the preceding clause (ii)(y) shall continue to apply only during the time that such material nonpublic information has not been disclosed and remains material or (iii) if the Company is pursuing a primary underwritten offering of Registrable Securities pursuant to a Registration Statement; provided, further, that the Members shall have Piggyback Registration rights with respect to such primary underwritten offering in accordance with and subject to the restrictions set forth in Section 10.1(b) (any such period, a “Suspension Period”); provided, however, that in such event, the Qualified Members will be entitled to withdraw any request for a Demand Registration and, if such request is withdrawn, such Demand Registration will not count as a Demand Registration under Section 10.1(a) and the Company will pay all Registration Expenses in connection with such registration; provided, further, that in no event shall (A) the Company declare a Suspension Period more than two (2) times in any twelve (12)-month period or (B) the aggregate length of Suspension Periods declared in any twelve (12)-month period exceed one hundred twenty (120) days in total.  The Company shall (i) give prompt written notice to the Members of its declaration of a Suspension Period and of the expiration or termination of the relevant Suspension Period and (ii) promptly resume the process of filing or requesting for effectiveness, or update the suspended Registration Statement, as the case may be, as may be necessary to permit the Members to offer and sell their respective Registrable Securities in accordance with applicable law.  If the filing of any Demand Registration is suspended pursuant to this Section 10.1(d), once the Suspension Period ends, the Qualified Members may request a new Demand Registration.

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(e)          Required Information.  The Company may require each Member holding Registrable Securities as to which any Registration Statement is being filed or sale is being effected to furnish to the Company such information regarding the intended method of distribution of such securities and such other information relating to such Member and its ownership of Registrable Securities as the Company may from time to time reasonably request in writing (provided, that such information shall be used only in connection with such registration) and the Company may exclude from such registration or sale the Registrable Securities of any such Member who fails to furnish such information within a reasonable time after receiving such request.  Each Member agrees to furnish such information to the Company and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.

(f)          Other Registration Rights Agreements.  The Company has not entered into and, unless agreed in writing by Members holding a majority of Registrable Securities on or after the date of this Agreement, will not enter into, any agreement or arrangement that (i) is inconsistent with the rights granted to the Members with respect to Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof in any material respect or (ii) other than as set forth in this Agreement, would allow any holder of Registrable Securities to include such securities in any Registration Statement filed by the Company on a basis that is more favorable in any material respect to the rights granted to the Members hereunder.  For the avoidance of doubt, granting a Person registration rights that would have priority over the Registrable Securities with respect to the inclusion of such securities in any registration would constitute granting registration rights to such Person on a basis that is more favorable in a material respect with respect to the rights granted to the Members of Registrable Securities and would require the prior written consent of Members holding a majority of Registrable Securities under this Agreement.

(g)          Cessation of Registration Rights.  All registration rights granted under this Section 10.1 shall continue to be applicable with respect to any Member until such Member no longer holds any Registrable Securities.  In the event the Company engages in a merger or consolidation in which the Registrable Securities of the Company are converted into securities of another Person, the Company will use its commercially reasonable efforts to make appropriate arrangements so that the registration rights provided under this Agreement continue to be provided by the issuer of such securities.  To the extent such new issuer, or any other Person acquired by the Company in a merger or consolidation, was bound by registration rights that would conflict with the provisions of this Agreement, the Company will use its commercially reasonable efforts to modify any such “inherited” registration rights so as not to interfere in any material respect with the rights provided under this Agreement.

(h)          Lock-Up Agreement.  Each Member holding Registrable Securities agrees that in connection with any Initial Public Offering or any underwritten registered offering of the Registrable Securities in connection with this Section 10.1, and upon the request of the managing underwriter in such offering, such Member shall agree not to, without the prior written consent of such managing underwriter, during the period commencing on the effective date of such registration and ending on the date specified by such managing underwriter (such period not to exceed one hundred and eighty (180) days following the closing of the offering in the case of an Initial Public Offering orninety (90) days following the closing of the offering in the case of any other underwritten registered offering), (i) offer, pledge, sell, contract to sell, grant any option or contract to purchase, purchase any option or contract to sell, hedge the beneficial ownership of or otherwise dispose of, directly or indirectly, any Registrable Securities or any securities convertible into, exercisable for or exchangeable for Registrable Securities held immediately before the effectiveness of the Registration Statement for such offering, or (ii) enter into any swap or other arrangement that Transfers to another Person, in whole or in part, any of the economic consequences of ownership of such securities, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Registrable Securities or such other securities, in cash or otherwise.  The foregoing provisions of this Section 10.1(h) shall not apply to (A) Members holding Registrable Securities that are not participating in the applicable registered offering or (B) in connection with any Initial Public Offering, Members holding less than five percent (5%) of the outstanding Registrable Securities.  Each Member of Registrable Securities agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the managing underwriter that are consistent with the foregoing or that are necessary to give further effect thereto.

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(i)           Registration Procedures.  The procedures to be followed by the Company and each participating Member to register the sale of Registrable Securities pursuant to a Registration Statement in accordance with this Agreement, and the respective rights and obligations of the Company and such Members with respect to the preparation, filing and effectiveness of such Registration Statement, are as follows:

(i)          The Company will (A) prepare and file a Registration Statement or a Prospectus, as applicable, with the Commission (within the time period specified in Section 10.1(a)) which Registration Statement (1) shall be on a form required by this Agreement (or if not so required, selected by the Company) for which the Company qualifies, (2) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution, and (3) shall comply as to form in all material respects with the requirements of the applicable form and include or incorporate by reference all financial statements required by the Commission to be filed therewith, (B) use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective for the periods provided under Section 10.1(a), (C) use its commercially reasonable efforts to prevent the occurrence of any event that would cause a Registration Statement to contain a material misstatement or omission or to be not effective and usable for resale of the Registrable Securities registered pursuant thereto (during the period that such Registration Statement is required to be effective as provided under Section 10.1(a)), and (D) cause each Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of such Registration Statement, amendment or supplement, (x) to comply in all material respects with any requirements of the Securities Act and the rules and regulations of the Commission and (y) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.  The Company will, (A) at least five (5) Business Days prior to the anticipated filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto (including any documents incorporated by reference therein) or before using any Issuer Free Writing Prospectus, furnish to such Members, the Members’ counsel and the managing underwriter or underwriters of an underwritten offering of Registrable Securities, if applicable, copies of all such documents proposed to be filed, and make such of the representatives of the Company as shall be reasonably requested by the Members available for discussion of such documents, (B) use its commercially reasonable efforts to address in each such document prior to being so filed with the Commission such comments as each such Member, its counsel or underwriter reasonably shall propose and (C) not file any Registration Statement or any related Prospectus or any amendment or supplement thereto containing information regarding a participating Member to which such participating Member reasonably objects (provided, that if a participating Member objects to information regarding such participating Member that is required in the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company may exclude such participating Member’s Registrable Securities from the applicable Registration Statement).

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(ii)         The Company will as promptly as reasonably practicable (A) prepare and file with the Commission such amendments, including post-effective amendments, and supplements to each Registration Statement and the Prospectus used in connection therewith as (1) may be reasonably requested by any Member of Registrable Securities covered by such Registration Statement necessary to permit such Member to sell in accordance with its intended method of distribution or (2) may be necessary under applicable law to keep such Registration Statement continuously effective with respect to the disposition of all Registrable Securities covered thereby for the periods provided under Section 10.1(a) in accordance with the intended method of distribution and, subject to the limitations contained in this Agreement, prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities held by the Members, (B) cause the related Prospectus to be amended or supplemented by any required prospectus supplement, and as so supplemented or amended, to be filed pursuant to Rule 424, (C) respond to any comments received from the Commission with respect to each Registration Statement or Prospectus or any amendment thereto, and (D) as promptly as reasonably practicable, provide such Members true and complete copies of all correspondence from and to the Commission relating to such Registration Statement or Prospectus other than any comments that the Company determines in good faith would result in the disclosure to such Members of material non-public information concerning the Company that is not already in the possession of such Member.

(iii)        The Company will comply in all material respects with the provisions of the Securities Act and the Exchange Act (including Regulation M under the Exchange Act) with respect to each Registration Statement and the disposition of all Registrable Securities covered by each Registration Statement.

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(iv)        The Company will notify such Members that hold Registrable Securities and the managing underwriter or underwriters of an underwritten offering of Registrable Securities, if applicable, as promptly as reasonably practicable: (A) (1) when a Registration Statement, any pre-effective amendment, any Prospectus or any prospectus supplement or post-effective amendment to a Registration Statement or any free writing prospectus is proposed to be filed, (2) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments on such Registration Statement (in which case the Company shall provide true and complete copies thereof and all written responses thereto to each Member, its counsel and each underwriter, if applicable, other than information which the Company determines in good faith would constitute material non-public information that is not already in the possession of such Member), and (3) with respect to each Registration Statement or any post-effective amendment thereto, when the same has been declared effective; (B) of any request by the Commission or any other federal or state governmental or regulatory authority for amendments or supplements to a Registration Statement or Prospectus or for additional information (whether before or after the effective date of the Registration Statement) or any other correspondence with the Commission or any such authority relating to, or which may affect, the Registration Statement; (C) of the issuance by the Commission or any other governmental or regulatory authority of any stop order, injunction or other order or requirement suspending the effectiveness of a Registration Statement covering any or all of the Registrable Securities or preventing or suspending the use of any Prospectus or the initiation or threatening of any proceedings for such purpose; (D) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose; (E) if, at any time, the representations and warranties of the Company in any applicable underwriting agreement or similar agreement cease to be true and correct in all material respects; or (F) of the occurrence of any event that makes any statement made in such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or if, as a result of such event or the passage of time, such Registration Statement, Prospectus or other document requires revisions so that, in the case of such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, or when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the Registration Statement or Prospectus, or if, for any other reason, it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act.

(v)         The Company will use its commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (A) any stop order or other order suspending the effectiveness of a Registration Statement or preventing or suspending the use of any Prospectus, or (B) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment, or if any such order or suspension is made effective during any Suspension Period, at the earliest practicable moment after the Suspension Period is over.

(vi)        During the Effectiveness Period, the Company will furnish to each selling Member, its counsel and the managing underwriter or underwriters of an underwritten offering of Registrable Securities, if applicable, upon their request, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by such selling Member, counsel or underwriter (including those incorporated by reference) promptly after the filing of such documents with the Commission.

(vii)       The Company will promptly deliver to each selling Member, its counsel and the managing underwriter or underwriters of an underwritten offering of Registrable Securities, if applicable, without charge, as many copies of each Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such selling Member, counsel or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such selling Member or underwriter.  The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Members and any applicable underwriter in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.

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(viii)      The Company will use its commercially reasonable efforts to (A) register and qualify, or cooperate with the selling Members, their counsel, the underwriters, if any, and counsel for the underwriters in connection with the registration or qualification (or exemption from such registration or qualification) of, the Registrable Securities covered by a Registration Statement, no later than the time such Registration Statement is declared effective by the Commission, under all applicable securities laws (including the “blue sky” laws) of such jurisdictions each underwriter, if any, or any selling Member shall reasonably request, (B) keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective under the terms of this Agreement, and (C) do any and all other acts and things which may be reasonably necessary or advisable to enable such underwriter, if any, and each selling Member to consummate the disposition of the Registrable Securities covered by such Registration Statement in each such jurisdiction; provided, however, that the Company will not be required to (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith) in any such jurisdiction.

(ix)        To the extent that the Company has certificated Registrable Securities, the Company will cooperate with each selling Member and the underwriter or managing underwriter of an underwritten offering of Registrable Securities, if applicable, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free of all restrictive legends indicating that the Registrable Securities are unregistered or unqualified for resale under the Securities Act, Exchange Act or other applicable securities laws, and to enable such Registrable Securities to be in such denominations and registered in such names as each selling Member or the underwriter or managing underwriter of an underwritten offering of Registrable Securities, if any, may request in writing.  In connection therewith, if required by the Company’s transfer agent, the Company will promptly, after the effective date of the Registration Statement, cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to and maintained with such transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without any such legend upon sale by the Member or the underwriter or managing underwriter of an underwritten offering of Registrable Securities, if any, of such Registrable Securities pursuant to the Registration Statement.

(x)         Upon the occurrence of any event contemplated by Section 10.1(i)(iv)(F), as promptly as reasonably practicable, the Company will prepare a supplement or amendment, including a post-effective amendment, if required by applicable law, to the affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or to the applicable Issuer Free Writing Prospectus, and file any other required document so that, as thereafter delivered, no Registration Statement nor any Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, in light of the circumstances under which they were made) not misleading and no Issuer Free Writing Prospectus will include information that conflicts with information contained in the Registration Statement or Prospectus, such that each selling Member can resume disposition of such Registrable Securities covered by such Registration Statement or Prospectus.

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(xi)        Selling Members may distribute the Registrable Securities by means of an underwritten offering; provided, that (A) such Members provide to the Company a Demand Notice of their intention to distribute Registrable Securities by means of an underwritten offering, (B) the right of any Member to include such Member’s Registrable Securities in such registration shall be conditioned upon such Member’s participation in such underwritten offering and the inclusion of such Member’s Registrable Securities in the underwritten offering to the extent provided herein, (C) each Member participating in such underwritten offering agrees to enter into customary agreements, including an underwriting agreement in customary form, and sell such Member’s Registrable Securities on the basis provided in any underwriting arrangements approved by the Members entitled to select the managing underwriter or managing underwriters hereunder (provided, that any such Member shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties, agreements and indemnities regarding such Member, such Member’s title to the Registrable Securities, such Member’s intended method of distribution, and the accuracy of information contained in the applicable Registration Statement or the related Prospectus concerning such Member as provided by or on behalf of such Member and the aggregate amount of the liability of such Member in connection with such offering shall not exceed such Member’s net proceeds from the disposition of such Member’s Registrable Securities in such offering) and (D) each Member participating in such underwritten offering completes and executes all questionnaires, powers of attorney, custody agreements and other documents reasonably required under the terms of such underwriting arrangements.  The Company hereby agrees with each Member of Registrable Securities that, in connection with any underwritten offering in accordance with the terms hereof, it will negotiate in good faith, execute and perform its obligations under all customary indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements, and will use commercially reasonable efforts to procure auditor “comfort” letters addressed to the underwriters in the offering from the Company’s independent certified public accountants or independent auditors (and, if necessary, any other independent certified public accountants or independent auditors of any Subsidiary of the Company or any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) in customary form and covering such matters of the type customarily covered by comfort letters for an underwritten Public Offering as the underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement.

(xii)       The Company will use commercially reasonable efforts to obtain for delivery to the underwriter or underwriters of an underwritten offering of Registrable Securities an opinion or opinions and a negative assurance letter from counsel for the Company (including any local counsel reasonably requested by the underwriters) dated as of the most recent effective date of the Registration Statement or, in the event of an underwritten offering, the date of the closing under the underwriting agreement, in customary form, scope and substance, covering the matters customarily covered in opinions and negative assurance letters requested in sales of securities or public underwritten offerings, which opinions shall be reasonably satisfactory to such underwriters and their counsel.

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(xiii)      For a reasonable period prior to the filing of any Registration Statement and throughout the Effectiveness Period, and in respect of any offering of Registrable Securities, the Company will make available upon reasonable notice at the Company’s principal place of business or such other reasonable place for inspection by any selling Member of Registrable Securities covered by the applicable Registration Statement, by any managing underwriter or managing underwriters selected in accordance with this Agreement and by any attorney, accountant or other agent retained by such Members or underwriter, such financial and other information and books and records of the Company, and cause the officers, employees, counsel and independent certified public accountants of the Company to respond to such inquiries, as shall be reasonably requested by such Members, underwriters, attorneys, accountants or agents (and in the case of counsel, not violate an attorney-client privilege in such counsel’s reasonable belief) to conduct a reasonable investigation within the meaning of the Securities Act.

(xiv)      The Company will (A) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement and provide and enter into any customary agreements with a custodian for the Registrable Securities and (B) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities included in such Registration Statement.

(xv)       The Company will cooperate with each Member of Registrable Securities and each underwriter or agent participating in the disposition of Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA and the performance of any due diligence investigations by any underwriter.

(xvi)      The Company will use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, the Trading Market, FINRA and any state securities authority, and make available to each Member, as soon as reasonably practicable after the effective date of the Registration Statement, an earnings statement covering at least twelve (12) months, which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158.

(xvii)     The Company will use its commercially reasonable efforts to ensure that any Issuer Free Writing Prospectus utilized in connection with any Prospectus complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related Prospectus, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

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(xviii)    In connection with any registration of Registrable Securities pursuant to this Agreement, the Company will take all commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the disposition of Registrable Securities by such Members, including furnishing to the selling Members or any underwriters such further customary certificates, opinions and documents as they may reasonably request and using commercially reasonable efforts to cause appropriate officers and employees to be available, on a customary basis and upon reasonable advance notice, to meet with prospective investors in presentations, meetings and road shows.

(xix)      The Company shall use its commercially reasonable efforts to list the Registrable Securities of any class or series covered by a Registration Statement on the New York Stock Exchange or The Nasdaq Global Market or any other national securities exchange.  Following the listing of the Registrable Securities on the New York Stock Exchange or The Nasdaq Global Market or any other national securities exchange, the Company will use its commercially reasonable efforts to maintain such listing.

(xx)       The Company shall, if an underwritten offering is made pursuant to a Registration Statement on Form S-3 or any similar short-form Registration Statement, include in such Registration Statement such additional information for marketing purposes as the managing underwriter(s) reasonably request(s).

(xxi)      The Company shall use its commercially reasonable efforts to cooperate in a timely manner with any reasonable and customary request of the Members in respect of any Alternative Transaction, including entering into customary agreements with respect to such Alternative Transactions (and providing customary representations, warranties, covenants and indemnities in such agreements) as well as providing other reasonable assistance in respect of such Alternative Transactions of the type applicable to a Public Offering subject to this Section 10.1, to the extent customary for such transactions.  Notwithstanding anything herein to the contrary, no Member shall be entitled to any piggyback rights in respect of an Alternative Transaction.

(xxii)     Each Member agrees by its acquisition of Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in clauses (B) through (D) and (F) of Section 10.1(i)(iv) or the occurrence of a Suspension Period, such Member will forthwith discontinue disposition of such Registrable Securities under the applicable Registration Statement until such Member’s receipt of the copies of the supplemental Prospectus or amended Registration Statement or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.  In the event the Company shall give any such notice, the period during which the applicable Registration Statement is required to be maintained effective shall be extended by the number of days during the period from and including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement either receives the copies of the supplemented Prospectus or amended Registration Statement or is advised in writing by the Company that the use of the Prospectus may be resumed.

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(j)           Registration Expenses.  The Company shall bear all reasonable Registration Expenses incident to the parties’ performance of or compliance with their respective obligations under this Agreement or otherwise in connection with any Demand Registration or Piggyback Registration (excluding any Selling Expenses), whether or not any Registrable Securities are sold pursuant to a Registration Statement.  In addition, the Company shall be responsible for all of its expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including expenses payable to third parties and including all salaries and expenses of the Company’s officers and employees performing legal or accounting duties), the expense of any annual audit and any underwriting fees, discounts, selling commissions and stock transfer taxes and related legal and other fees applicable to securities sold by the Company and in respect of which proceeds are received by the Company.  Each Member shall pay any Selling Expenses applicable to the sale or disposition of such Member’s Registrable Securities pursuant to any Demand Registration Statement or Piggyback Registration Statement, in proportion to the amount of such selling Member’s shares of Registrable Securities sold in any offering under such Demand Registration Statement or Piggyback Registration Statement.

(k)          Indemnification.

(i)          The Company shall indemnify and hold harmless each underwriter, if any, engaged in connection with any registration referred to in this Section 10.1 and provide representations, covenants, opinions and other assurances to such underwriter in form and substance reasonably satisfactory to such underwriter and the Company.  Further, the Company shall indemnify and hold harmless each Member, their respective partners, stockholders, equityholders, general partners, managers, members, and Affiliates and each of their respective officers and directors and any Person who controls any such Member (within the meaning of the Securities Act or the Exchange Act) and any employee or Representative thereof (each, an “Indemnified Person” and collectively, “Indemnified Persons”, which terms, as the context so requires, shall also apply to Persons entitled to indemnification pursuant to Section 10.1(k)(ii)), to the fullest extent permitted by law, from and against any and all losses, claims, damages, liabilities, joint or several, costs (including reasonable costs of preparation and reasonable attorneys’, accountants’ and experts’ fees) and expenses, judgments, fines, penalties, interest, settlements or other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, in which any Indemnified Person may be involved, or is threatened to be involved, as a party or otherwise, under the Securities Act, the Exchange Act or otherwise (collectively, “Losses”), as incurred, arising out of, based upon, resulting from or relating to (A) any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which any Registrable Securities were registered, Prospectus (including in any preliminary prospectus (if used prior to the effective date of such Registration Statement)), or in any summary or final prospectus or free writing prospectus or in any amendment or supplement thereto or in any documents incorporated or deemed incorporated by reference in any of the foregoing, (B) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, or (C) any violation or alleged violation by the Company or any of its Subsidiaries of the Securities Act, the Exchange Act, any state securities law or any rule or regulation promulgated under the Securities Act, the Exchange Act or any federal, state, foreign or common law rule or regulation in connection with such Registration Statement, disclosure document or related document or report or any offering covered by such Registration Statement, and the Company shall reimburse such Indemnified Person for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability, demand, action, suit or proceeding; provided, however, that the Company shall not be liable to any Indemnified Person to the extent that any such Losses arise out of, are based upon or results from an untrue or alleged untrue statement or omission or alleged omission made in such Registration Statement, such preliminary, summary or final prospectus or free writing prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Indemnified Person specifically for use therein.

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(ii)         In connection with any Registration Statement filed by the Company pursuant to this Section 10.1 hereof in which a Member has registered for sale its Registrable Securities, each such selling Member agrees (severally and not jointly) to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its directors and officers, employees, agents and each Person who controls the Company (within the meaning of the Securities Act or the Exchange Act) and any other Member selling securities under such Registration Statement, its partners, stockholders, equityholders, general partners, managers, members, and Affiliates and each of their respective officers and directors and any Person who controls such other Member (within the meaning of the Securities Act or the Exchange Act) and any employee or Representative thereof from and against any Losses resulting from (A) any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which such Registrable Securities were registered or sold under the Securities Act, Prospectus (including in any preliminary prospectus (if used prior to the effective date of such Registration Statement)), or in any summary or final prospectus or free writing prospectus or in any amendment or supplement thereto or in any documents incorporated by reference in any of the foregoing, (B) any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, or (C) any violation or alleged violation by such Member of any federal, state or common law rule or regulation relating to action or inaction in connection with any information provided by such Member in such registration, disclosure document or related document or report in the case of clauses (A) and (B) to the extent, but only to the extent, that such untrue statement or omission occurs in reliance upon and in conformity with any information furnished in writing by or on behalf of such selling Member to the Company specifically for inclusion in such registration, disclosure document or related document or report and has not been corrected in a subsequent writing prior to the sale of the Registrable Securities thereunder, and such Member will reimburse the Company for any legal or other expenses reasonably incurred by it in connection with investigating or defending such Losses.  In no event shall the liability of any selling Member hereunder be greater in amount than the dollar amount of the net proceeds received by such Member under the sale of Registrable Securities giving rise to such indemnification obligation less any amounts paid by such Member in connection with such sale.

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(iii)        Any Indemnified Person under paragraph (i) or (ii) of this Section 10.1(k) shall (A) give prompt written notice to the indemnifying person under paragraph (i) or (ii) of this Section 10.1(k) of any claim with respect to which it seeks indemnification (provided, that any delay or failure to so notify the indemnifying person shall not relieve the indemnifying party of its obligations hereunder except to the extent, if at all, that the indemnifying person’s ability to defend such claim (through the forfeiture of substantive rights or defenses) is actually and materially prejudiced by reason of such delay or failure) and (B) permit such indemnifying person to assume the defense of such claim with counsel reasonably satisfactory to the Indemnified Person; provided, however, that any Indemnified Person shall have the right to select and employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (1) the indemnifying person has agreed in writing to pay such fees or expenses, (2) the indemnifying person shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such Indemnified Person within a reasonable time after receipt of notice of such claim from the Indemnified Person, (3) the Indemnified Person has reasonably concluded (based upon advice of its counsel) that there may be legal defenses available to it or other Indemnified Persons that are different from or in addition to those available to the indemnifying person, or (4) in the reasonable judgment of any such Indemnified Person (based upon advice of its counsel) a conflict of interest may exist between such Indemnified Person and the indemnifying person with respect to such claims (in which case, if the Indemnified Person notifies the indemnifying person in writing that such Indemnified Person elects to employ separate counsel at the expense of the indemnifying person, the indemnifying person shall not have the right to assume the defense of such claim on behalf of such Indemnified Person).  If such defense is not assumed by the indemnifying person, the indemnifying person will not be subject to any liability for any settlement made without its prior written consent, but such consent may not be unreasonably withheld, delayed or conditioned.  If the indemnifying person assumes the defense, the indemnifying person shall not have the right to settle such action, consent to entry of any judgment or enter into any settlement, in each case without the prior written consent of the Indemnified Person (which consent shall not be unreasonably withheld, delayed or conditioned); provided, that the prior written consent of the Indemnified Person shall not be required if (x) such settlement includes an unconditional release of such Indemnified Person from all liability on the claims that are the subject matter of such settlement; (y) such settlement provides that any sums payable in connection therewith are payable in full by the indemnifying person and (z) such settlement does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.  It is understood that the indemnifying person or persons shall not, except as specifically set forth in this Section 10.1(k)(iii), in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements or other charges of more than one separate firm (in addition to any local counsel that is required to effectively defend against any such proceeding) for all Indemnified Persons and that all such fees and expenses shall be paid or reimbursed promptly.

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(iv)        If the indemnification provided for in this Section 10.1(k) is held by a court of a competent jurisdiction to be unavailable to an Indemnified Person with respect to any loss, damage, claim or liability, the indemnifying party, in lieu of indemnifying such Indemnified Person thereunder, shall to the extent permitted by law, contribute to the amount paid or payable by such Indemnified Person as a result of such loss, damage, claim or liability in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and of the Indemnified Person on the other in connection with the actions that resulted in such loss, claim, damage or liability, as well as any other relevant equitable considerations.  The relative fault of the indemnifying person and of the Indemnified Person shall be determined by a court of law by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying person or Indemnified Person and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.  The parties agree that it would not be just and equitable if contribution pursuant to this Section 10.1(k)(iv) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding sentences.  Notwithstanding the provisions of this Section 10.1(k)(iv), no selling Member shall be required to contribute any amount in excess of the net proceeds (after deducting the underwriters’ discounts and commissions) received by such selling Member in the offering.  No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.  Each selling Member’s obligation to contribute pursuant to this Section 10.1(k)(iv) is several in the proportion that the net proceeds of the offering received by such selling Member bears to the total net proceeds of the offering received by all such selling Members and not joint.

(v)         The remedies provided for in this Section 10.1(k) are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.  The obligations of the Company and Members holding Registrable Securities under this Section 10.1(k) shall survive completion of any offering of Registrable Securities pursuant to a Registration Statement and the termination of this Agreement.

(l)           Facilitation of Sales Pursuant to Rule 144.  The Company shall use its commercially reasonable efforts to (i) to the extent required by the Exchange Act, timely file the reports required to be filed by it under the Exchange Act or the Securities Act and the rules adopted by the Commission thereunder (including the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 under the Securities Act), and (ii) take such further action as any Member may reasonably request, all to the extent required from time to time to enable the Members to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144 under the Securities Act.  Upon the written request of any Member in connection with that Member’s sale pursuant to Rule 144 under the Securities Act, the Company shall deliver to such Member a written statement as to whether it has complied with such requirements.  This Section 10.1(l) shall apply only after an Initial Public Offering.

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(m)         Reclassification.  In connection with a proposed Public Offering of the Company approved by the Board with respect to which either (i) the managing underwriters advise the Company that in their opinion the capital structure of the Company or its form of legal entity may adversely affect the marketability of the offering or (ii) the Board determines that a legal entity other than the Company is the most suitable entity for purposes of effectuating the Public Offering, each of the Members and any other Person owning Units will vote for a recapitalization and/or exchange of the Units into securities (the “Reclassified Securities”) (x) that the managing underwriters and/or the Board find acceptable and (y) in which all or a portion of the Units are either combined into a single class or type of Reclassified Security and/or the rights and preferences of all of the classes of Units of the Company are preserved as nearly as possible, and each of the Members will take such actions as are reasonably required in connection with such recapitalization and/or exchange, including converting the Company from a limited liability company into a corporation, contributing their respective Units to a newly formed or existing corporation in exchange for stock of such newly formed or existing corporation or structuring the recapitalization and/or exchange in any other manner advised by the managing underwriters and/or the Board; provided, that the Reclassified Securities provide each Member with the same relative economic interest (ignoring, for purposes hereof, any change in value resulting from a change in the tax status of the Company) as such Person had prior to such recapitalization and/or exchange; provided, further, that the provisions of this Agreement (to the extent applicable) shall apply to the Reclassified Securities and the issuer thereof as such provisions apply to the Units and the Company, mutatis mutandis.  Each Member shall take all action reasonably requested by the Board to effect any such restructuring.

10.2       Financial Statements; Earnings Calls.  The Company will furnish to each Member holding Common Units the following: (i) within forty-five (45) days following the conclusion of each of the first three fiscal quarters of each of the Company’s fiscal years ending after the date hereof, quarterly unaudited consolidated financial statements of the Company and its Subsidiaries (except (x) with respect to the fiscal quarter ending June 30, 2020, within seventy-five (75) days of the end of such fiscal quarter and (y) with respect to the fiscal quarter ending September 30, 2020, within sixty (60) days of the end of such fiscal quarter); and (ii) within one hundred and twenty (120) days after the end of each fiscal year, annual audited consolidated financial statements of the Company and its Subsidiaries (collectively, the “Financial Statements”).  Reasonably promptly following the release of each of the Financial Statements (but in any event, not later than ten (10) Business Days following any such release by the Company), the Company will provide a telephonic presentation to the Representatives of Members to discuss the Company’s financial condition and results of operations, following which presentation the Company will allow Representatives of the Members to ask reasonable questions.  Any Member entitled to receive any of the foregoing financial information may elect to not receive such information, for any reason or no reason, by notifying the Company in writing.  Notwithstanding anything to the contrary herein, no Member will be furnished with or otherwise entitled to receive any of the foregoing financial information (including participation in quarterly calls) and shall not be permitted to share with any bona fide potential transferees described in Section 11.14(a)(iii) if such Member or potential transferee, at the time such information is to be distributed or call is to take place, (i) owns ten percent (10%) or more of the outstanding capital stock or other equity interests of any Person engaged in the Business, (ii) is reasonably likely to own ten percent (10%) or more of the outstanding capital stock or other equity interests of any Person engaged in the Business within the next twelve (12) months, (iii) is a director, officer or employee of any Person engaged in the Business or (iv) is a Person engaged in the Business, or an Affiliate thereof, and each Member, upon request, and each potential transferee, prior to receipt of such information (including participation in quarterly calls), must certify to the Company it is in compliance with this Section 10.2.  Each Member shall be liable for any action of its Representatives or recipients that would constitute a violation of Section 11.14 if such Representative or recipient were party to this Agreement.

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ARTICLE XI

GENERAL PROVISIONS

11.1       Amendment.  This Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed by the Company and Members holding not less than a majority of the outstanding Common Units; provided, that, in addition to and without limiting the foregoing, (i) no amendment may adversely affect a Member relative to other Members without such Member’s prior written consent, and (ii) any amendment to Section 6.2 of this Agreement regarding a Nominating Member’s right to nominate a Representative Director shall require the prior written consent of such Nominating Member; provided, however, that the Schedule of Members and the Schedule of Units shall be amended by the Company as necessary from time to time, and without the consent of any Members, to properly reflect the capitalization of the Company as of such time; provided, further, that the provisions hereof shall be appropriately adjusted for any dividends, splits, reverse splits, combinations, recapitalizations and the like occurring after the date hereof, in each case, without the consent of any Members.  Any amendment or waiver must specifically reference this Agreement, specify the provision(s) hereof that it is intended to amend or waive and further specify that it is intended to amend or waive such provision(s).

11.2       Remedies.

(a)          Each Member shall have all rights and remedies set forth in this Agreement and all rights and remedies that such Person has been granted at any time under any other agreement or contract and all of the rights that such Person has under any applicable law.  Any Person having any rights under any provision of this Agreement or any other agreements contemplated hereby shall be entitled to enforce such rights specifically (without posting a bond or other security) to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by applicable law.

(b)          Specific Performance.  Without limiting the generality of Section 11.2(a) above, because of the unique character of the Units and the agreements set forth herein, the parties hereto will be irreparably damaged if this Agreement is not specifically enforced.  Should any dispute arise concerning (a) the Transfer of Units or (b) any other provision of this Agreement, an injunction may be issued (without the requirement that a bond be posted) restraining any Transfer or any action taken in contravention of this Agreement (as the case may be) pending the determination of such controversy.  In the event of any controversy concerning (i) the right or obligation to Transfer any such Units or (ii) any other provision of this Agreement, such right or obligation shall be enforceable in a court of equity by a decree of specific performance.  Such remedy shall be cumulative and not exclusive, and shall be in addition to any other remedy which the Company or the other Members may have.  The provisions of this Section 11.2(b) shall survive the termination of this Agreement, irrespective of the reason therefor.

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(c)          To the fullest extent permitted by law, the Court of Chancery of the State of Delaware (the “Court of Chancery”) shall be the sole and exclusive forum for any Member (including a beneficial owner) to bring (a) any derivative action or proceeding brought on behalf of the Company, (b) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or employee of the Company to the Company or the Member, (c) any action asserting a claim against the Company, its directors, officers or Members arising pursuant to any provision of the Delaware Act or this Agreement, (d) any action asserting a claim against the Company, its directors, officers or Members governed by the internal affairs doctrine, or (e) any action or claim arising out of this Agreement.  In connection with any claim arising out of or related to this Agreement, each of the Company and each Member hereby irrevocably and unconditionally (i) submits to the exclusive jurisdiction of the Court of Chancery, (ii) waives any objection that such Person may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement in the Court of Chancery, (iii) waives any objection that the Court of Chancery is an inconvenient forum or as not having jurisdiction over either the Company or such Member, (iv) agrees that service of process in any such action or proceeding shall be effective if notice is given in accordance with this Agreement, although nothing contained in this Agreement shall affect the right to serve process in any other manner permitted by law and (v) agrees not to seek a transfer of venue on the basis that another forum is more convenient.  Notwithstanding anything herein to the contrary, (i) nothing in this Section 11.2(c) shall prohibit any party from seeking or obtaining orders for conservatory or interim relief from any court of competent jurisdiction and (ii) each of the Company and each Member agrees that any judgment issued by the Court of Chancery may be recognized, recorded, registered or enforced in any jurisdiction in the world and waives any and all objections or defenses to the recognition, recording, registration or enforcement of such judgment in any such jurisdiction.

11.3       Successors and Assigns.  This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns including, without limitation, subsequent Members agreeing to be bound by all of the terms and conditions of this Agreement.

11.4       Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

11.5       Counterparts.  This Agreement may be executed simultaneously in two or more separate counterparts, any one of which need not contain the signatures of more than one party, but each of which shall be an original and all of which together shall constitute one and the same agreement binding on all the parties hereto.

11.6       Applicable Law.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.  Any dispute relating hereto shall be heard in the state or federal courts of the State of Delaware, and the parties agree to jurisdiction and venue therein.

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11.7        Addresses and Notices.  All notices and other communications hereunder shall be in writing and shall be deemed duly given (i) upon delivery, if served by personal delivery upon the Person for whom it is intended, (ii) on the third (3rd) Business Day after the date mailed if delivered by registered or certified mail, return receipt requested, postage prepaid, (iii) on the following Business Day if delivered by a nationally-recognized, overnight, air courier or (iv) when delivered or, if sent after 5:00 p.m. Eastern Time, on the following Business Day if sent by email.  Such notices, demands and other communications shall be sent to the address for such recipient set forth on the Schedule of Members attached hereto, or in the Company’s books and records, or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party.  Any notice to the Board or the Company shall be deemed given if received by the Board at the principal office of the Company designated pursuant to Section 2.5, with a copy to the Secretary of the Company at such principal office.

11.8       Creditors.  None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the Company or any of its Affiliates, and no creditor who makes a loan to the Company or any of its Affiliates may have or acquire (except pursuant to the terms of a separate agreement or security agreement executed by the Company in favor of such creditor) at any time as a result of making the loan any direct or indirect interest in Company profits, losses, Distributions, capital or property other than as a secured creditor.

11.9       Waiver.  No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant, duty, agreement or condition.

11.10     Further Action.  The parties agree to execute and deliver all documents, provide all information and take or refrain from taking such actions as may be necessary or appropriate to achieve the purposes of this Agreement.

11.11      Entire Agreement.  This Agreement, those documents expressly referred to herein and other documents dated on or about either the Reorganization Date or the date hereof (as amended from time to time) related to the subject matter hereof embody the complete agreement and understanding among the parties hereto and supersede and preempt any prior understandings, agreements or representations by or among the parties hereto, written or oral, that may have related to the subject matter hereof in any way.

11.12     Delivery by Facsimile or Email.  This Agreement, the agreements referred to herein, and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or an email with a scan or facsimile attachment, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.  At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them to all other parties.  No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine or email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or email as a defense to the formation or enforceability of a contract, and each such party forever waives any such defense.

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11.13     Survival.  Sections 5.3, 6.17, 10.1, 11.2, 11.12, 11.13 and 11.14 shall survive and continue in full force in accordance with its terms, notwithstanding any termination of this Agreement or the dissolution of the Company.

11.14     Confidentiality.

(a)          Each Member acknowledges that any notices or information furnished, including verbally, pursuant to this Agreement (the “Confidential Information”) is confidential and competitively sensitive.  Each Member shall use, and shall cause any Person to whom Confidential Information is disclosed pursuant to clause (i) below to use, the Confidential Information only in connection with its investment in the securities of the Company and not for any other purpose (including to disadvantage competitively the Company or any other Member).  Each Member shall not disclose any Confidential Information to any Person, except that Confidential Information may be disclosed:

(i)          to the Member’s Representatives in the normal course of the performance of their duties for such Member (it being understood that such Representatives shall be informed by the Member of the confidential nature of such information and shall be directed to treat such information in accordance with this Section 11.14);

(ii)         to the extent requested or required by applicable law, rule or regulation; provided, that the Member shall give the Company prompt written notice of such request(s), to the extent practicable, and to the extent permitted by law so that the Company may, at its sole expense, seek an appropriate protective order or similar relief (and the Member shall cooperate with such efforts by the Company, and shall in any event make only the minimum disclosure required by such law, rule or regulation and shall use commercially reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such information);

(iii)        to any Person to whom the Member is contemplating a bona fide Transfer of its equity interests in the Company permitted in accordance with the terms hereof; provided, that such Person is not prohibited from receiving such information pursuant to this Section 11.14 and, prior to such disclosure, such potential transferee is advised of the confidential nature of such information and executes a non-disclosure agreement in a form approved by the Board and which agreement is independently enforceable by the Company;

(iv)        to any governmental, regulatory or self-regulatory authority or rating agency to which the Member or any of its Affiliates is subject or with which it has regular dealings in connection with any routine request of or any routine examination by such authority or agency, as long as such authority or agency is advised of the confidential nature of such information;

(v)         in connection with the Member’s or the Member’s Affiliates’ normal fund raising, marketing, informational or reporting activities; provided, that prior to such disclosure the Persons to whom such information is disclosed are advised of the confidential nature of such information and execute a non-disclosure agreement in a form approved by the Board; or

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(vi)        if the prior written consent of the Company shall have been obtained.

(b)          Nothing contained herein shall prevent the use (subject, to the extent possible, to a protective order) of Confidential Information in connection with the assertion or defense of any claim by or against the Company or any Member.  The restrictions contained in this Section 11.14 shall terminate, with respect to any Member, twenty-four (24) months following the date on which such Member ceases to own any equity interests in the Company.

(c)          Confidential Information, with respect to any Member, does not include information that: (a) is or becomes generally available to the public (including as a result of any information filed or submitted by the Company with the Commission) other than as a result of a disclosure by such Member or its Representatives in violation of any confidentiality provision of this Agreement or any other applicable agreement; (b) is or was available to such Member or its Representatives on a non-confidential basis prior to its disclosure to such Member or its Representatives by the Company; or (c) was or becomes available to such Member or its Representatives on a non-confidential basis from a source other than the Company, which source is or was (at the time of receipt of the relevant information) not, to the best of such Member’s or its Representatives’ knowledge, bound by a confidentiality agreement with (or other confidentiality obligation to) the Company or another Person.

(d)          Employment Agreements, Severance Agreements and Confidentiality Agreements.  Anything contained herein to the contrary notwithstanding, if any Member, on the one hand, and the Company or any Subsidiary, on the other hand, shall have entered into an employment, severance, confidentiality or similar agreement which provides for the confidentiality of Confidential Information or rights to intellectual property, then the provisions of this Section 11.14 shall, as to such Member, be superseded by such provisions of such employment, severance, confidentiality or similar agreement for so long as such agreement is in effect.

11.15     Reimbursement of Expenses.  The Company shall pay all fees and expenses incurred by the Board.

11.16     Waiver of Certain Damages.  To the extent permitted by applicable law, each party hereto agrees not to assert, and hereby waives, any claim against any other party, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any of the transactions contemplated hereby.

11.17     Use of Member’s Names.  Neither the Company, its Affiliates nor any of their respective Representatives shall issue any press releases or other public disclosure using the name of any Member or any of its Affiliates without such Member’s prior written consent; provided, however, the exceptions set forth in Section 11.14(a) shall apply mutatis mutandis to the Company, its Affiliates or their respective Representatives with respect to the disclosure of the name of a Member or any of its Affiliates (in any press release, other public disclosure or otherwise) as if the name of such Member or any of its Affiliates were “Confidential Information” (as defined herein).

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11.18     No Recourse.  Notwithstanding anything that may be expressed or implied in this Agreement, and notwithstanding the fact that certain of the Members may be partnerships or limited liability companies, each Member covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any of the Company’s or any Member’s former, current or future direct or indirect equity holders, controlling Persons, stockholders, directors, officers, employees, agents, Affiliates, members, financing sources, managers, general or limited partners or assignees (and collectively, the “Non-Recourse Parties”), in each case other than the Company, the Members or any of their permitted assigns under this Agreement, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any of the Non-Recourse Parties, as such, for any obligation or liability of the Company or the Members under this Agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or liabilities or their creation; provided, however, nothing in this Section 11.18 shall relieve or otherwise limit the liability of the Company or any Member, as such, for any breach or violation of its obligations under this Agreement or such documents or instruments.

[END OF PAGE]

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, the undersigned have executed or caused to be executed on their behalf this Agreement as of the date first written above.

COMPANY
INTERNAP HOLDING LLC
By:	/s/ Michael Sicoli
	Name: Michael Sicoli
	Title: CEO

[Signature Page – Limited Liability Company Agreement of Internap Holding LLC]

EX-10.1

Exhibit 10.1

EXECUTION VERSION

SENIOR SECURED TERM LOAN CREDIT AGREEMENT

dated as of May 8, 2020,

among

INTERNAP HOLDING LLC,

as Borrower,

THE GUARANTORS PARTY HERETO,

as Guarantors,

THE LENDERS PARTY HERETO,

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Administrative Agent and Collateral Agent

TABLE OF CONTENTS

		Page
ARTICLE I. DEFINITIONS		2
Section 1.01	Defined Terms	2
Section 1.02	Classification of Loans and Borrowings	50
Section 1.03	Terms Generally	50
Section 1.04	Accounting Terms; GAAP	51
Section 1.05	Effectuation of Exit Transactions	52
Section 1.06	Resolution of Drafting Ambiguities	52
Section 1.07	Division.	52
Section 1.08	Rates.	52
Section 1.09	Interpretation Clause (Québec).	53
ARTICLE II. THE CREDITS		53
Section 2.01	Commitments	53
Section 2.02	[Reserved]	54
Section 2.03	[Reserved]	54
Section 2.04	Evidence of Debt; Repayment of Loans	54
Section 2.05	Fees	55
Section 2.06	Interest on Loans	55
Section 2.07	Termination of Commitments	56
Section 2.08	Interest Elections.	57
Section 2.09	Reserved	58
Section 2.10	Optional and Mandatory Prepayments of Loans	58
Section 2.11	Alternate Rate of Interest	60
Section 2.12	Increased Costs; Change in Legality	61
Section 2.13	Breakage Payments	64
Section 2.14	Payments Generally; Pro Rata Treatment; Sharing of Setoffs	64
Section 2.15	Taxes	66
Section 2.16	Mitigation Obligations; Replacement of Lenders	69
Section 2.17	Increases of the Loan	72

- i -

ARTICLE III. REPRESENTATIONS AND WARRANTIES		74
Section 3.01	Organization; Powers; Regulatory Licenses	74
Section 3.02	Authorization; Enforceability	75
Section 3.03	No Conflicts; No Default	75
Section 3.04	Financial Statements	76
Section 3.05	Properties	76
Section 3.06	Intellectual Property	76
Section 3.07	Equity Interests and Subsidiaries	77
Section 3.08	Litigation; Compliance with Legal Requirements	78
Section 3.09	Agreements	78
Section 3.10	Federal Reserve Regulations	78
Section 3.11	Investment Company Act, etc.	78
Section 3.12	Use of Proceeds	79
Section 3.13	Taxes	79
Section 3.14	No Material Misstatements	79
Section 3.15	Labor Matters	79
Section 3.16	Solvency	80
Section 3.17	Employee Benefit Plans	80
Section 3.18	Environmental Matters	81
Section 3.19	Insurance	82
Section 3.20	Mortgages	82
Section 3.21	Anti-Terrorism Law; Foreign Corrupt Practices Act	82
Section 3.22	Security Documents	83
Section 3.23	No EEA Financial Institution.	84
ARTICLE IV. CONDITIONS TO CREDIT EVENTS		84
Section 4.01	Conditions to Closing Date	84
Section 4.02	Conditions to All Credit Events	90
ARTICLE V. AFFIRMATIVE COVENANTS		91
Section 5.01	Financial Statements, Reports, etc.	91
Section 5.02	Litigation and Other Notices	94
Section 5.03	Existence; Businesses and Properties	94
Section 5.04	Insurance	95
Section 5.05	Obligations and Taxes	96
Section 5.06	Employee Benefits	96

- ii -

Section 5.07	Maintaining Records; Access to Properties and Inspections; Annual Meetings	97
Section 5.08	Use of Proceeds	97
Section 5.09	Compliance with Environmental Laws; Environmental Reports	97
Section 5.10	Compliance Policy	97
Section 5.11	Additional Collateral; Additional Guarantors	98
Section 5.12	Security Interests; Further Assurances	100
Section 5.13	Approved Budget	101
Section 5.14	Reserved	102
Section 5.15	Information Regarding Collateral	102
Section 5.16	Obtaining Ratings	102
Section 5.17	Deposit Accounts	102
Section 5.18	Compliance with Confirmation Order and Approved Plan	103
ARTICLE VI. NEGATIVE COVENANTS		103
Section 6.01	Indebtedness	103
Section 6.02	Liens	106
Section 6.03	Reserved	110
Section 6.04	Investments, Loans and Advances	110
Section 6.05	Mergers and Consolidations	112
Section 6.06	Asset Sales	112
Section 6.07	[Reserved]	113
Section 6.08	Dividends	113
Section 6.09	Transactions with Affiliates	114
Section 6.10	Maximum Total Net Leverage Ratio	114
Section 6.11	Prepayments of Other Indebtedness; Modifications of Organizational Documents, Acquisition and Certain Other Documents, etc.	115
Section 6.12	Limitation on Certain Restrictions on Subsidiaries	116
Section 6.13	Limitation on Issuance of Capital Stock	117
Section 6.14	Business	117
Section 6.15	Limitation on Accounting Changes	117
Section 6.16	Fiscal Periods	117
Section 6.17	No Further Negative Pledge	118

- iii -

Section 6.18	Anti-Terrorism Law; Anti-Money Laundering	118
Section 6.19	Embargoed Person	118
Section 6.20	Compliance with Canadian Pension Plans	118
Section 6.21	Orders	119
ARTICLE VII. GUARANTEE		119
Section 7.01	The Guarantee	119
Section 7.02	Obligations Unconditional	119
Section 7.03	Reinstatement	121
Section 7.04	Subrogation; Subordination	121
Section 7.05	Remedies	121
Section 7.06	Instrument for the Payment of Money	121
Section 7.07	Continuing Guarantee	121
Section 7.08	General Limitation on Guarantee Obligations	122
Section 7.09	Right of Contribution	122
Section 7.10	Release of Guarantors.	122
ARTICLE VIII. EVENTS OF DEFAULT		123
Section 8.01	Events of Default	123
Section 8.02	Rescission	126
Section 8.03	[Reserved]	126
Section 8.04	Application of Proceeds	126
ARTICLE IX. THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT		128
Section 9.01	Appointment	128
Section 9.02	Agent in Its Individual Capacity	129
Section 9.03	Exculpatory Provisions	130
Section 9.04	Reliance by Agent	131
Section 9.05	Delegation of Duties	131
Section 9.06	Successor Agent	132
Section 9.07	Non-Reliance on Agent and Other Lenders	132
Section 9.08	Indemnification	133
Section 9.09	Lender Action	133
Section 9.10	Withholding Taxes	134
Section 9.11	Lender’s Representations, Warranties and Acknowledgements	134
Section 9.12	Security Documents and Guarantee	135

- iv -

Section 9.13	Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim	136
Section 9.14	Intercreditor Agreement	137
ARTICLE X. MISCELLANEOUS		139
Section 10.01	Notices	139
Section 10.02	Waivers; Amendment	142
Section 10.03	Expenses; Indemnity; Damage Waiver	145
Section 10.04	Successors and Assigns	148
Section 10.05	Survival of Agreement	152
Section 10.06	Counterparts; Integration; Effectiveness	153
Section 10.07	Severability	153
Section 10.08	Right of Setoff; Marshalling; Payments Set Aside	153
Section 10.09	Governing Law; Jurisdiction; Waiver of Jury Trial; Consent to Service of Process	154
Section 10.10	Waiver of Jury Trial	155
Section 10.11	Headings	155
Section 10.12	Confidentiality	156
Section 10.13	Interest Rate Limitation	157
Section 10.14	Assignment and Assumption	157
Section 10.15	Obligations Absolute	157
Section 10.16	Waiver of Defenses; Absence of Fiduciary Duties	158
Section 10.17	Reinstatement	158
Section 10.18	USA Patriot Act	158
Section 10.19	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	159
Section 10.20	Collateral Agency and Intercreditor Agreement.	159
Section 10.21	Certain ERISA Matters.	159
Section 10.22	Currency Indemnity.	162

- v -

ANNEXES
Annex I	Initial Lenders and Commitments
SCHEDULES
Schedule 1.01(a)	Material Property
Schedule 1.01(b)	Guarantors
Schedule 1.01(c)	Pledgors
Schedule 1.01(d)	Data Center Leases
Schedule 3.07(a)	Subsidiaries
Schedule 3.07(b)	Corporate Organizational Chart
Schedule 3.09	Material Agreements
Schedule 3.18	Environmental Matters
EXHIBITS
Exhibit A	Form of Assignment and Assumption
Exhibit B	Form of Solvency Certificate
Exhibit C	Form of Compliance Certificate
Exhibit D	Form of Intercompany Note
Exhibit E-1	Form of Perfection Certificate
Exhibit E-2	Form of Perfection Certificate Supplement
Exhibit F	Approved Budget
Exhibit G	[Reserved]
Exhibit H	[Reserved]
Exhibit I	Form of Note
Exhibit J	[Reserved]
Exhibit K	[Reserved]
Exhibit L-1	Form of U.S. Tax Compliance Certificate (Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit L-2	Form of U.S. Tax Compliance Certificate (Foreign Participants that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit L-3	Form of U.S. Tax Compliance Certificate (Foreign Participants that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit L-4	Form of U.S. Tax Compliance Certificate (Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes)

- vi -

SENIOR SECURED TERM LOAN CREDIT AGREEMENT

This SENIOR SECURED TERM LOAN CREDIT AGREEMENT (this “Agreement”) dated as of May 8, 2020, among Internap Holding LLC, a Delaware limited liability company (f/k/a Internap Corporation) (“Borrower”), the guarantors from time to time party hereto, the several banks and other financial institutions from time to time party hereto (as further defined in Section 1.01, the “Lenders”) and Wilmington Trust, National Association, as administrative agent for the Lenders (solely in such capacity, the “Administrative Agent”) and as collateral agent for the Secured Parties (solely in such capacity, the “Collateral Agent”).

WITNESSETH:

WHEREAS, on March 16, 2020 (the “Petition Date”), Borrower and the Guarantors (each, a “Debtor” and collectively, the “Debtors”) commenced Chapter 11 Case Nos. 20-10805, 20-10806, 20-22393, 20-22394, 20-22396, 20-22398, and 20-22399, as administratively consolidated at Chapter 11 Case No. 20-22393 (collectively, the “Chapter 11 Cases” and each individually, a “Chapter 11 Case”) in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) and have continued in the possession of their assets and management of their businesses pursuant to Sections 1107 and 1108 of the Bankruptcy Code;

WHEREAS, in connection with the Chapter 11 Cases, Borrower, the Guarantors and certain creditor parties entered into the Restructuring Support Agreement dated as of March 13, 2020 which provides for the implementation of a restructuring pursuant to which, among other things, Borrower and Guarantors will enter into certain financing arrangements pursuant to the Debtors’ Joint Prepackaged Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code (including all annexes, exhibits, schedules and supplements thereto, in each case, as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Prepackaged Plan”);

WHEREAS, on May 8 2020, the Bankruptcy Court entered the Confirmation Order (as hereinafter defined) approving the Debtors’ Joint Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code (the “Approved Plan”);

WHEREAS, the Debtors entered into that certain Senior Secured Super-Priority Debtor-In-Possession Credit Agreement, dated as of March 18, 2020, with the lenders party thereto and Jefferies Finance, LLC, as administrative agent and collateral agent for such lenders (as amended, supplemented or otherwise modified from time to time, the “DIP Credit Agreement”);

WHEREAS, on the date hereof, Borrower was converted to a limited liability company under the Delaware Limited Liability Company Act, with the name Internap Holding LLC, by filing a certificate of conversion and certificate of formation with the Secretary of State of the State of Delaware;

WHEREAS, upon the effectiveness of the Approved Plan, and, upon the terms and conditions set forth in this Agreement, all DIP Roll Up Loans and DIP New Money Loans (in each case, as used and defined in the DIP Credit Agreement) under the DIP Credit Agreement shall be converted into Loans as used and defined hereunder and the Lenders shall be deemed to have made, in the aggregate, $75,100,000 of aggregate principal amount of Loans as used and defined hereunder (the “Facility”);

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WHEREAS, substantially concurrently herewith, Borrower, the Guarantors, the Second Out Term Loan Lenders, the Second Out Term Loan Administrative Agent (each such term as defined herein) and the Collateral Agent are entering into the Second Out Term Loan Credit Agreement (as defined herein) pursuant to which the Second Out Term Loan Lenders shall make available (or shall be deemed to make available) to Borrower the Second Out Term Loans in the aggregate principal amount of $225,000,000 (the “Second Out Term Loan Facility”);

WHEREAS, subject to the terms hereof, Borrower and the Guarantors have agreed to secure all of their Obligations under the Loan Documents by granting to the Collateral Agent, for the benefit of the Administrative Agent, the Collateral Agent and the other Secured Parties, a security interest in and lien upon all of their now existing and hereafter-acquired property; and

WHEREAS, the Lenders are willing to extend such credit to Borrower on the terms and subject to the conditions set forth herein.

Accordingly, the parties hereto agree as follows:

ARTICLE I.

DEFINITIONS

Section 1.01        Defined Terms.  As used in this Agreement, the following terms have the meanings specified below:

“ABR” when used in reference to any Loan or Borrowing, is used when such Loan comprising such Borrowing is, or the Loans comprising such Borrowing are, bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II.

“ABR Loan” means any Loan bearing interest at a rate determined by reference to Alternate Base Rate.

“Actual Cash Receipts” means with respect to any period, as the context requires, (x) the amount of actual receipts during such period of the Loan Parties (excluding any borrowings under this Agreement) under the heading “Total Receipts” in the Approved Budget and/or (y) the sum, for such period, of all such receipts for all such line items which comprise “Total Receipts” (as set forth in the Approved Budget), on a cumulative basis (consistent with the Variance Period), in each case, as determined by reference to the Approved Budget as then in effect.

“Actual Operating Disbursement Amounts” means with respect to any period, as the context requires, (x) the amount of actual operating disbursements made by the Loan Parties during such period that correspond to each line item (on a line item by line item basis) under the headings “Operating Disbursements” in the Approved Budget and/or (y) the sum, for such period, of all such disbursements for all such line items which comprise “Total Operating Disbursements” (as set forth in the Approved Budget), on a cumulative basis (consistent with the Variance Period), in each case, as determined by reference to the Approved Budget as then in effect, which amounts do not include Actual Restructuring Related Amounts.

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“Actual Restructuring Related Amounts” means with respect to any period, the amount of financing, restructuring and professional fees during such period for which the Loan Parties are liable for payment (including as reimbursement to any Secured Parties or the Specified Lender Advisors) that correspond to the headings “Restructuring Related” in the Approved Budget as then in effect.

“Ad Hoc Group of Lenders” means those certain Lenders on the Closing Date represented by Gibson Dunn & Crutcher LLP, as counsel, and Rothschild & Co., as financial advisor.

“Adjusted LIBOR Rate” means, with respect to any applicable Borrowing for any Interest Period, an interest rate per annum (rounded upward, if necessary, to the next 1/100th of 1%) determined by the Administrative Agent to be equal to (x) the LIBOR Rate for such Eurodollar Borrowing in effect for such Interest Period divided by (y) 1 minus the Statutory Reserves (if any) for such Eurodollar Borrowing for such Interest Period; provided that in no event shall the Adjusted LIBOR Rate be less than one percent per annum in respect of the Loans.

“Administrative Agent” has the meaning set forth in the preamble hereto and includes each other Person appointed as the successor administrative agent pursuant to Article IX.

“Administrative Agent Fees” has the meaning set forth in Section 2.05.

“Administrative Agent’s Account” means the account designated from time to time in writing as the “Administrative Agent’s Account” by the Administrative Agent to the other parties hereto.

“Administrative Questionnaire” means an administrative questionnaire in the form supplied from time to time by the Administrative Agent.

“Advisors” means legal counsel (including local, regulatory, foreign and in-house counsel), auditors, accountants, consultants, appraisers, engineers or other advisors.

“Affiliate” means, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided, however, that for purposes of Section 6.09, the term “Affiliate” shall also include (i) any Person that directly or indirectly owns more than 10% of any class of Equity Interests of the Person specified or (ii) any Person that is an officer or director of the Person specified, provided, further, however, that for so long as such Persons are Lenders hereunder, none of the Persons (or their Affiliates) owning Equity Interests in Borrower shall constitute an Affiliate of the Loan Parties for purposes of the Loan Documents.

“Agents” means the Administrative Agent and the Collateral Agent; and “Agent” means either or both of them as the context requires.

“Agreement” has the meaning set forth in the preamble hereto.

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“Alternate Base Rate” means, for any day, a rate per annum (rounded upward, if necessary, to the next 1/100th of 1%) equal to the greatest of (a) the Base Rate in effect on such day, (b) with respect to the Loans issued on the Closing Date, 2.00% per annum, (c) the Federal Funds Effective Rate in effect on such day plus 0.50% and (d) the Adjusted LIBOR Rate for a Eurodollar Loan with a one-month interest period (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%.  If the Administrative Agent shall have determined (which determination shall be conclusive and binding absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate or the Adjusted LIBOR Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (c) or (d), as applicable, of the preceding sentence until the circumstances giving rise to such inability no longer exist; provided that in no event shall the Alternate Base Rate be less than zero percent per annum.  Any change in the Alternate Base Rate due to a change in the Base Rate, the Federal Funds Effective Rate or the then applicable or the Adjusted LIBOR Rate shall be effective on the effective date of such change in the Base Rate, the Federal Funds Effective Rate or the then applicable Adjusted LIBOR Rate, respectively.

“Anti-Terrorism Laws” has the meaning set forth in Section 3.21.

“Applicable Margin” means, for any day, with respect to (a) any Loan that is an ABR Loan, 9.00% per annum and (b) any Loan that is a Eurodollar Loan, 10.00% per annum.

“Approved Budget” means the then most current budget prepared by Borrower and approved by the Required Lenders in accordance with Section 5.13.  As of the Closing Date the Approved Budget is attached hereto as Exhibit F.

“Approved Budget Variance Report” means a report provided by Borrower to the Administrative Agent and the Lenders (a) showing, in each case, on a line item by line item and cumulative basis, the Actual Cash Receipts, the Actual Operating Disbursement Amounts and Actual Restructuring Related Amounts as of the last day of the Prior Week, and the Variance Period then most recently ended, noting therein (i) all variances, on a line item by line item basis and a cumulative basis, from the Budgeted Cash Receipts, the Budgeted Operating Disbursement Amounts, and the Budgeted Restructuring Related Amounts for such period as set forth in the Approved Budget as in effect for such period and (ii) containing an indication as to whether each variance is temporary or permanent and analysis and explanations for all material variances, (iii) certifying compliance or non-compliance with such maximum variances set forth therein, and (iv) including explanations for all material variances and violations, if any, of such covenant and if any such violation exists, setting forth the actions which Borrower has taken or intends to take with respect thereto and (b) which such reports shall be certified by a Responsible Officer of Borrower and shall be in a form, and shall contain supporting information, satisfactory to the Required Lenders in their sole discretion.

“Approved Electronic Communications” means any notice, demand, communication, information, document or other material that any Loan Party provides to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein, which is distributed to the Agents or the Lenders by means of electronic communications pursuant to Section 10.01(b).

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“Approved Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or investing in bank and other commercial loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Asset Sale” means (a) any Disposition of any Property by any Company and (b) any issuance or sale by any Company of any Equity Interests of any Subsidiary of Borrower, in each case, to any Person other than (x) a Loan Party or (y) in the case of a Wholly Owned Subsidiary of Borrower that is not a Loan Party, another Wholly Owned Subsidiary of Borrower that is not a Loan Party

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required pursuant to Section 10.04(b)), and accepted by the Administrative Agent, substantially in the form of Exhibit A, or such other form as shall be approved by the Administrative Agent from time to time.

“Bailee Letter” has the meaning set forth in the Security Agreement.

“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.

“Bankruptcy Code” means Chapter 11 of Title 11 of the United States Code, as amended from time to time and any successor statute and all rules and regulations promulgated thereunder.

“Bankruptcy Court” has the meaning set for the in the recitals to this Agreement.

“Base Rate” means, for any day, the prime rate published in The Wall Street Journal for such day; provided that if The Wall Street Journal ceases to publish for any reason such rate of interest, “Base Rate” means the prime lending rate as set forth on the Bloomberg page PRIMBB Index (or successor page) for such day (or such other service as determined by the Administrative Agent from time to time for purposes of providing quotations of prime lending interest rates); each change in the Base Rate shall be effective on the date such change is effective.  The prime rate is not necessarily the lowest rate charged by any financial institution to its customers.

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“Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which may be a SOFR-Based Rate) that has been selected by the Administrative Agent, the Required Lenders and Borrower 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 and/or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to the LIBOR Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than 1.00%, the Benchmark Replacement will be deemed to be 1.00% for the purposes of this Agreement; provided further that any such Benchmark Replacement shall be administratively feasible as determined by the Administrative Agent in its reasonable discretion.

“Benchmark Replacement Adjustment” means the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent, the Required Lenders and Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBOR Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBOR Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time; provided, that any such Benchmark Replacement Adjustment shall be administratively feasible as determined by the Administrative Agent in its reasonable discretion.

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

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the LIBOR Rate permanently or indefinitely ceases to provide the Screen Rate; or

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the LIBOR Rate:

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(1)         a public statement or publication of information by or on behalf of the administrator of the LIBOR Rate announcing that such administrator has ceased or will cease to provide the LIBOR Rate, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBOR Rate;

(2)        a public statement or publication of information by the regulatory supervisor for the administrator of the LIBOR Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the LIBOR Rate, a resolution authority with jurisdiction over the administrator for the LIBOR Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the LIBOR Rate, in each case which states that the administrator of the LIBOR Rate has ceased or will cease to provide the LIBOR Rate permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBOR Rate; and/or

(3)          a public statement or publication of information by the regulatory supervisor for the administrator of the LIBOR Rate announcing that the LIBOR Rate 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 ninetieth (90^th) 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 ninety (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 Administrative Agent or the Required Lenders, as applicable, by notice to Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.

“Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the LIBOR Rate and solely to the extent that the LIBOR Rate 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 the LIBOR Rate for all purposes hereunder in accordance with Section 2.11 and (y) ending at the time that a Benchmark Replacement has replaced the LIBOR Rate for all purposes hereunder pursuant to Section 2.11.

“Board” means the Board of Governors of the Federal Reserve System of the United States.

“Board of Directors” means, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person, (ii) in the case of any limited liability company, the board of managers or board of directors, as applicable, of such Person, or if such limited liability company does not have a board of managers or board of directors, the functional equivalent of the foregoing, (iii) in the case of any partnership, the board of directors or board of managers, as applicable, of the general partner of such Person and (iv) in any other case, the functional equivalent of the foregoing.

“Borrower” has the meaning set forth in the preamble hereto.

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“Borrowing” means a borrowing or deemed borrowing of Loans hereunder of the same Type, made, deemed made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

“Budgeted Cash Receipts” means with respect to any period, as the context requires, (x) the line item under the heading “Total Receipts” in the Approved Budget and/or (y) the sum, for such period, of all the amounts for all such line items which comprise “Total Receipts” (as set forth in the Approved Budget), on a cumulative basis (consistent with the Variance Period), in each case, as determined by reference to the Approved Budget as then in effect.

“Budgeted Operating Disbursement Amounts” means with respect to any period, as the context requires, (x) the amount that corresponds to the line item under the heading “Total Operating Disbursements” in the Approved Budget and/or (y) the sum, for such period, of all such line items which comprise “Total Operating Disbursements” (as set forth in the Approved Budget), on a cumulative basis (consistent with the Variance Period), in each case, as determined by reference to the Approved Budget as then in effect, which amounts do not include Budgeted Restructuring Related Amounts.

“Budgeted Restructuring Related Amounts” means with respect to any period, the amount of financing, restructuring and professional fees for such period that are set forth under the headings “Restructuring Related” in the Approved Budget, as then in effect.

“Business Day” means any day other than a Saturday, Sunday or other day on which banks in New York City or Atlanta, Georgia are authorized or required by law or other governmental action to close; provided, however, that when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.

“Canadian Anti-Terrorism Laws” has the meaning set forth in Section 3.21.

“Canadian Deed of Hypothec” means, collectively, the deed of hypothec, among certain Loan Parties and the Collateral Agent, acting as hypothecary representative, together with each additional deed of hypothec executed and delivered pursuant to this Agreement.

“Canadian Loan Party” means any Loan Party which is organized under the laws of Canada or any Province or Territory of Canada.

“Canadian Pension Plan” means each “registered pension plan” that has a “defined benefit provision” (as such terms are defined under the Income Tax Act (Canada)) that is maintained or contributed to by any Company for its employees or former employees, but does not include the Canada Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the Province of Quebec, respectively.

“Canadian Sanctions” has the meaning set forth in Section 3.21.

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“Capital Expenditures” means, without duplication, (a) any cash expenditure for any purchase or other acquisition of any asset including capitalized leasehold improvements, which would be classified as a fixed or capital asset on a consolidated balance sheet of Borrower and its Subsidiaries prepared in accordance with GAAP and (b) Capital Lease Obligations and Synthetic Lease Obligations, but excluding (i) expenditures made in connection with the replacement, substitution or restoration of Property pursuant to Section 2.10(d), (ii) the purchase price of equipment that is purchased substantially contemporaneously with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time, (iii) amounts expended by any Company to purchase assets constituting an ongoing business, (iv) the purchase of assets to the extent financed with the proceeds of Dispositions that are not required to be mandatorily prepaid pursuant to Section 2.10, (v) expenditures relating to the construction or acquisition of any asset that has been transferred to a Person other than Borrower and its Subsidiaries during the same fiscal year in which such expenditures were made, or in the immediately succeeding fiscal year, pursuant to a sale and leaseback transaction consummated prior to the New Incremental Loan Closing Date (as defined in the Pre-Petition Credit Agreement).

“Capital Lease” means, with respect to any Person, any lease of, or other arrangement conveying the right to use, any Property by such Person as lessee that has been or should be accounted for as a capital lease on a balance sheet of such Person prepared in accordance with GAAP.

“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any Capital Lease, any lease entered into as part of any sale and leaseback transaction or any Synthetic Lease, or a combination thereof, which obligations are (or would be, if such Synthetic Lease or other lease were accounted for as a Capital Lease) required to be classified and accounted for as Capital Leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof (or the amount that would be capitalized, if such Synthetic Lease or other lease were accounted for as a Capital Lease) determined in accordance with GAAP.

“Capital Requirements” means, as to any Person, any matter, directly or indirectly, (i) regarding capital adequacy, capital ratios, capital or liquidity requirements, the calculation of such Person’s capital, liquidity or similar matters, or (ii) affecting the amount of capital required to be obtained or maintained by such Person or any Person Controlling such Person (including any direct or indirect holding company), or the manner in which such Person or any Person Controlling such Person (including any direct or indirect holding company) allocates capital to any of its contingent liabilities (including letters of credit), advances, acceptances, commitments, assets or liabilities.

“Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by Borrower and its Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of Borrower and its Subsidiaries.

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“Cash Equivalents” means, as of any date of determination and as to any Person, any of the following:  (a) United States and Canadian dollars (including amounts denominated in such currencies that are deposited into a deposit account (within the meaning of the UCC)); (b) in the case of any Foreign Subsidiary, (x) such local currencies held by it from time to time in the ordinary course of business and not for speculation (including any amounts denominated in such currencies that are deposited with any bank that serves as a depository bank for, among other things, payroll accounts maintained by a Foreign Subsidiary in the applicable jurisdiction in the ordinary course of business) or (y) customarily utilized high-quality investments in securities denominated in such local currencies with average maturities of not more than twenty (20) days from the date of acquisition held by such Foreign Subsidiary from time to time in the ordinary course of business and not for speculation; (c) marketable securities issued, or directly, unconditionally and fully guaranteed or insured, by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one (1) year from the date of acquisition by such Person, (d) money market deposits, time deposits, eurodollar time deposits, overnight bank deposits and certificates of deposit of any Lender or any domestic or foreign bank having, or which is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia or any U.S. branch of a foreign bank having, capital and surplus aggregating in excess of $250,000,000 and a rating of “A” (or such other similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) with maturities of not more than one (1) year from the date of acquisition by such Person, (e) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (c) above entered into with any Person meeting the qualifications specified in clause (d) above, which repurchase obligations are secured by a valid perfected security interest in the underlying securities, (f) commercial paper issued by any Person incorporated in the United States rated at least A-2 or the equivalent thereof by Standard & Poor’s Rating Service (“S&P”) or at least P-2 or the equivalent thereof by Moody’s Investors Service Inc. (“Moody’s”) (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency), and in each case maturing not more than one (1) year after the date of acquisition by such Person, (g) marketable short-term money market and similar highly liquid funds having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (h) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having a rating of at least P-2 or A-2 from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) with maturities of not more than one (1) year from the date of acquisition; (i) Investments with average maturities of not more than one (1) year from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (j) investment funds investing substantially all of their assets in Cash Equivalents of the kinds described in clauses (a) through (i) of this definition; and (k) solely with respect to any Foreign Subsidiary or Investments made in a country outside the United States of America, (x) investments of the type and maturity described in clauses (a) through (j) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (y) other short-term investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in customarily utilized high-quality investments analogous to the foregoing investments in clauses (a) through (j).

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“Cash Interest Expense” means, for any period, Consolidated Interest Expense for such period, less the sum of (a) interest on any debt paid by the increase in the principal amount of such debt including by issuance of additional debt of such kind or the accretion or capitalization of interest as principal and (b) other than to the extent paid in cash or cash equivalents, items described in clause (f) of the definition of “Consolidated Interest Expense.”

“Cash Management Services” means (a) credit cards for commercial customers (including, without limitation, commercial credit cards and purchasing cards), (b) stored value cards and (c) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services).

“Casualty Event” means any loss of title (other than through a consensual Disposition of such Property in accordance with this Agreement) or any loss of or damage to or any destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any Property of any Company.  “Casualty Event” shall include any taking of all or any part of any Real Property of any Person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Legal Requirement, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of any Person or any part thereof by any Governmental Authority, or any settlement in lieu thereof.

“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601 et seq.

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

(a)         any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or group or its respective subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause such person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of Voting Stock of Borrower representing more than 50% of the voting power of the total outstanding Voting Stock of Borrower (and taking into account all such securities that such person or group has the right to acquire (whether pursuant to an option right or otherwise));

(b)         during any period of twelve (12) consecutive months, a majority of the members of the Board of Directors of Borrower cease to be composed of individuals (i) who were members of that Board of Directors at the commencement of such period, (ii) whose election or nomination to that Board of Directors was approved by individuals referred to in preceding clause (i) constituting at the time of such election or nomination at least a majority of that Board of Directors or (iii) whose election or nomination to that Board of Directors was approved by individuals referred to in preceding clauses (i) and (ii) constituting at the time of such election or nomination at least a majority of that Board of Directors; or

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(c)         any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of Borrower, or control over the equity securities of Borrower entitled to vote for members of the Board of Directors of Borrower on a fully-diluted basis (and taking into account all such securities that such Person or Persons have the right to acquire (whether pursuant to an option right or otherwise)) representing 40% or more of the combined voting power of such securities.

“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, order, rule, regulation, policy, or treaty by any Governmental Authority, (b) any change in any law, order, 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 thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

“Chapter 11 Cases” has the meaning set forth in the preamble hereto.

“Charges” has the meaning set forth in Section 10.13.

“Claims” has the meaning set forth in Section 10.03(b).

“Closing Date” means May 8, 2020.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” means, collectively, all of the Security Agreement Collateral, the Material Property and all other Property of whatever kind and nature, whether now existing or hereafter acquired, pledged or purported to be pledged as collateral or otherwise subject to a security interest or purported to be subject to a security interest under any Security Document.

“Collateral Agent” has the meaning set forth in the preamble hereto.

“Commitment” means, the Commitment of each Lender to make (or be deemed to have made) the Loans as set forth on Annex I.

“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.

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“Communications” has the meaning set forth in Section 10.01(b).

“Communications Act” means, collectively, the Communications Act of 1934, as amended by the Telecommunications Act of 1996, and as further amended, and the rules and regulations promulgated thereunder, including, without limitation, C.F.R. Title 47 and the rules, regulations and decisions by the FCC, in each case, as from time to time in effect.

“Companies” means Borrower and its Subsidiaries; and “Company” means any one of them.

“Competitor” means (i) any competitor of Borrower that is identified by Borrower to the Administrative Agent in writing on or prior to the Closing Date or from time to time thereafter (subject in the case of competitors identified after the Closing Date to the consent of the Administrative Agent, such consent not to be unreasonably withheld, delayed or conditioned) and (ii) any affiliate of any such competitor that is clearly identifiable as such, based solely on its name (other than any such affiliate that is engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds, and similar extensions of credit in the ordinary course of business, as long as the power to direct or cause the direction of the investment policies of such affiliate is not possessed by any other such competitor or affiliate thereof); provided that no written notice delivered pursuant to this definition shall apply retroactively to disqualify any Person that has acquired an assignment or participation interest in the Loans prior to the delivery of such notice.

“Compliance Certificate” means a certificate of a Financial Officer of Borrower substantially in the form of Exhibit C or such other form as may be approved by the Administrative Agent and Borrower.

“Compounded SOFR” means the compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate (which may include compounding in arrears with a lookback and/or suspension period as a mechanism to determine the interest amount payable prior to the end of each Interest Period) being established by the Administrative Agent in accordance with:

(1)          the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining Compounded SOFR; provided that:

(2)         if, and to the extent that, the Administrative Agent determines that Compounded SOFR cannot be determined in accordance with clause (1) above, then the rate, or methodology for this rate, and conventions for this rate that the Administrative Agent determines in its reasonable discretion are substantially consistent with any evolving or then-prevailing market convention for determining Compounded SOFR for U.S. dollar-denominated syndicated credit facilities at such time;

provided, further, that if the Administrative Agent decides that any such rate, methodology or convention determined in accordance with clause (1) or clause (2) is not administratively feasible for the Administrative Agent, then Compounded SOFR will be deemed unable to be determined for purposes of the definition of “SOFR-Based Rate.”

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“Confirmation Order” means the Findings of Fact, Conclusions of Law and Order (i) approving the Debtors’ (a) Disclosure Statement pursuant to Sections 1125 and 1126(b) of the Bankruptcy Code, (b) Solicitation of Votes and Voting Procedures, and (c) Forms of Ballots, and (ii) Confirming Joint Prepackaged Chapter 11 Plan of Checkout Holding Corp. and its Affiliated Debtors Docket No. 198 entered by the Court on May 8, 2020 in the Chapter 11 Cases.

“Consolidated Amortization Expense” means, for any period, the amortization expense (including the amortization of capitalized software expenses, internal labor costs and deferred financing fees) of Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated Current Assets” means, as at any date of determination, the total assets of Borrower and its Subsidiaries (other than cash, cash equivalents and marketable securities) which may properly be classified as current assets on a consolidated balance sheet of Borrower and its Subsidiaries in accordance with GAAP.

“Consolidated Current Liabilities” means, as at any date of determination, the total liabilities of Borrower and its Subsidiaries which may properly be classified as current liabilities on a consolidated balance sheet of Borrower and its Subsidiaries in accordance with GAAP excluding, to the extent otherwise included therein (a) the current portion of any Funded Debt, (b) the current portion of interest (excluding interest that is past due and unpaid), (c) liabilities in respect of unpaid earn-outs, (d) the current portion of deferred acquisition costs, (e) the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to any consummated acquisition, and (f) accruals for deferred taxes based on income or profits.

“Consolidated Depreciation Expense” means, for any period, the depreciation expense of Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated EBITDA” means, for any period, Consolidated Net Income for such period, adjusted by (x) adding thereto, without duplication, in each case, except with respect to sub clauses (m) or (p) below, only to the extent (and in the same proportion) deducted in determining such Consolidated Net Income (and with respect to the portion of Consolidated Net Income attributable to any Subsidiary of Borrower only if a corresponding amount of cash would be permitted to be distributed to Borrower by such Subsidiary by operation of the terms of its Organizational Documents and all agreements, instruments, Orders and other Legal Requirements applicable to such Subsidiary or its equityholders during such period):

(a)          Consolidated Interest Expense (including realized losses in respect of any Obligation under Permitted Hedging Agreements as determined in accordance with GAAP) for such period;

(b)          Consolidated Amortization Expense for such period (including amortization of Capitalized Software Expenditures, internal labor costs and amortization of deferred financing fees or costs);

(c)          Consolidated Depreciation Expense for such period;

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(d)          Consolidated Tax Expense for such period;

(e)          non-recurring costs and expenses directly incurred, within 60 days following the Closing Date, in connection with the Transactions;

(f)          transaction costs, fees and expenses in connection with any Disposition, Investment, Equity Issuances or the incurrence of any Indebtedness (including a refinancing thereof), in each case permitted hereunder and in each case whether or not consummated;

(g)          transaction costs, fees and expenses in connection with any contemplated Investment constituting an acquisition permitted hereunder that is not consummated for any Test Period;

(h)          transaction costs, fees and expenses in connection with any contemplated Investment permitted under Section 6.04, Equity Issuances or the incurrence or any amendment of any Indebtedness permitted hereunder that is not consummated;

(i)          nonrecurring or extraordinary cash losses and expenses not to exceed $2,000,000 for any Test Period;

(j)          restructuring charges or reserves incurred during such period determined on a consolidated basis in accordance with GAAP;

(k)        non-cash compensation expense (including deferred non-cash compensation expense), or other non-cash expenses or charges, arising from the sale or issuance of Equity Interests, the granting of stock options, and the granting of stock appreciation rights and similar arrangements (including any repricing, amendment, modification, substitution, or change of any such Equity Interests, stock option, stock appreciation rights, or similar arrangements) minus the amount of any such expenses or charges when paid in cash to the extent not deducted in the computation of Consolidated Net Income determined on a consolidated basis in accordance with GAAP;

(l)          the after-tax effect of any loss on sales of fixed assets or write-downs of fixed or intangible assets determined on a consolidated basis in accordance with GAAP;

(m)        cash receipts (or any netting arrangements resulting in reduced cash expenditures) not included in the calculation of Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (y) below for any previous period and not added back;

(n)          any costs or expenses incurred by Borrower or any Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of Borrower or Net Cash Proceeds of an issuance of Equity Interests of Borrower (other than Disqualified Capital Stock);

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(o) any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of FASB Accounting Standards Codification 715, and any other items of a similar nature;

(p)        without duplication, any restructuring, cost saving initiative or other initiative projected by Borrower or any Subsidiary in good faith to be realized as a result of actions that have been taken or initiated or are expected to be taken (in the good faith determination of Borrower), including any cost savings, expenses and charges (including restructuring and integration charges) in connection with, or incurred by or on behalf of, any joint venture of Borrower or any of its Subsidiaries (whether accounted for on the financial statements of any such joint venture or the applicable Company) with respect to any restructuring, cost saving initiative or other initiative whether initiated before, on or after the Closing Date, within 12 months after such restructuring, cost saving initiative or other initiative (which cost savings shall be added to Consolidated EBITDA until fully realized and calculated on a pro forma basis as though such cost savings had been realized on the first day of the relevant period), net of the amount of actual benefits realized from such actions; provided that (A) such cost savings are reasonably quantifiable and factually supportable, and identified and certified by the chief financial officer or equivalent officer of Borrower as meeting the requirements of this clause (p); (B) the share of any such cost savings, expenses and charges with respect to a joint venture that are to be allocated to Borrower or any of its Subsidiaries shall not exceed the total amount thereof for any such joint venture multiplied by the percentage of income of such venture expected to be included in Consolidated EBITDA for the relevant Test Period; and (C) the aggregate amount added back pursuant to this clause (p) for any Test Period shall not exceed 20% of Consolidated EBITDA for such Test Period (calculated prior to taking into account this clause (p));

(q)          the after-tax effect of any loss from the early purchase and retirement or extinguishment of Indebtedness;

(r)          charges incurred during such period for which insurance or indemnity recovery is actually received in cash during such period;

(s)          minority interest expense deducted and any other deductions attributable to minority interests and joint ventures (and not otherwise included in Consolidated Net Income);

(t)          costs, charges and expenses in connection with fresh-start accounting (or similar treatments);

(u)          with respect to Investments in any Person (other than a Subsidiary), net income during such period to the extent received in cash or Cash Equivalents during such period (and not otherwise included in Consolidated Net Income); and

(v)         the aggregate amount of all other non-cash items reducing Consolidated Net Income (excluding any non-cash charge that results in an accrual of a reserve for cash charges in any future period or the amortization of a prepaid cash item that was paid in a prior period or any write-down or writeoff of assets for such period); and

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(w) subtracting therefrom (A) the aggregate amount of all non-cash items increasing Consolidated Net Income (other than the accrual of revenue or recording of receivables in the ordinary course of business) for such period, excluding any such income that represents the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period (other than any such cash charge that has not increased Consolidated EBITDA); (B) the after-tax effect of any gain on sales of assets outside of the ordinary course of business; (C) realized gains in respect of obligations under Permitted Hedging Agreements as determined in accordance with GAAP; and (D) the after-tax effect of any income from the early purchase and retirement or extinguishment of Indebtedness.

Notwithstanding anything to the contrary herein, “Consolidated EBITDA” for the fiscal quarter ending on (i) September 30, 2020, shall be equal to Consolidated EBITDA for such fiscal quarter then ended, multiplied by four, (ii) December 31, 2020, shall be equal to Consolidated EBITDA for the two fiscal quarters then ended, multiplied by two, (iii) March 31, 2021, shall be equal to Consolidated EBITDA for the three fiscal quarter period then ended, multiplied by 4/3 and (iv) June 30, 2021, shall be equal to Consolidated EBITDA for the four fiscal quarter period then ended.

“Consolidated Indebtedness” means, as at any date of determination, without duplication, the aggregate amount of all Indebtedness of Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP.

“Consolidated Interest Expense” means, for any period, the total consolidated interest expense, net of total interest income, of Borrower and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP plus, without duplication:

(a)          imputed interest on Capital Lease Obligations of Borrower and its Subsidiaries for such period;

(b)          commissions, discounts and other fees and charges owed by Borrower or any of its Subsidiaries with respect to letters of credit securing financial obligations, bankers’ acceptance financing, receivables financings and similar credit transactions for such period;

(c)         cash contributions to any employee stock ownership plan or similar trust made by Borrower or any of its Subsidiaries to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than Borrower or any of its Wholly Owned Subsidiaries) in connection with Indebtedness incurred by such plan or trust for such period;

(d)          all interest paid or payable with respect to discontinued operations of Borrower or any of its Subsidiaries for such period;

(e)        the interest portion of any payment obligations of Borrower or any of its Subsidiaries for such period deferred for payment at any future time, whether or not such future payment is subject to the occurrence of any contingency, and includes any and all payments representing the purchase price and any assumptions of Indebtedness and/or Contingent Obligations; and

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(f)          without duplication, (i) all interest on any Indebtedness of Borrower or any of its Subsidiaries of the type described in clause (e) or (j) of the definition of “Indebtedness” for such period and (ii) all cash payments in respect of any Disqualified Capital Stock during such period.

“Consolidated Net Income” means, for any period, the consolidated net income (or loss) of Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from such net income (to the extent otherwise included therein), without duplication:

(a)          the net income (or loss) of any Person (other than Borrower or a Wholly Owned Subsidiary of Borrower) in which any Person other than Borrower or any of its Wholly Owned Subsidiaries has an ownership interest, except to the extent that cash or Cash Equivalents in an amount equal to any such income has actually been received by Borrower or (subject to clause (b) below) any of its Wholly Owned Subsidiaries from such Person during such period (or if not received in cash or Cash Equivalents but later converted into cash or Cash Equivalents during such period, upon such conversion);

(b)          the gains, losses, charges or expenses due to (i) the early extinguishment of indebtedness or (ii) the application of “fresh-start” accounting (or similar accounting treatments);

(c)          earnings resulting from any reappraisal, revaluation or write-up of assets;

(d)        any extraordinary or nonrecurring noncash gain (or extraordinary or nonrecurring noncash loss), together with any related provision for taxes on any such noncash gain (or the tax effect of any such noncash loss), recorded or recognized by Borrower or any of its Subsidiaries during such period;

(e)          the cumulative effect of a change in accounting principles during such period to the extent included in Consolidated Net Income;

(f)          any income (loss) for such period attributable to the early extinguishment of Indebtedness, hedging agreements or other derivative instruments;

(g)         any gain (loss) on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business) or income (loss) from discontinued operations (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of);

(h)        any non-cash gain (loss) attributable to the mark to market movement in the valuation of hedging obligations or other derivative instruments pursuant to FASB Accounting Standards Codification 815-Derivatives and Hedging or mark to market movement of other financial instruments pursuant to FASB Accounting Standards Codification 825-Financial Instruments in such period; provided that any cash payments or receipts relating to transactions realized in a given period shall be taken into account in such period;

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(i)          any non-cash gain (loss) related to currency remeasurements of Indebtedness, net loss or gain resulting from hedging agreements for currency exchange risk and revaluations of intercompany balances; and

(j)          any impairment charge or asset write-off or write-down (including related to intangible assets (including goodwill), long-lived assets, and investments in debt and equity securities).

There shall be excluded from Consolidated Net Income for any period the effects from applying acquisition method accounting, including applying acquisition method accounting to inventory, property and equipment, loans and leases, software and other intangible assets and deferred revenue (including deferred costs related thereto and deferred rent) required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to Borrower and its Subsidiaries), as a result of any Investment or the amortization or write-off of any amounts thereof.

In addition, to the extent not already included in Consolidated Net Income, Consolidated Net Income shall include (i) the amount of proceeds received or due from business interruption insurance or reimbursement of expenses and charges that are covered by indemnification and other reimbursement provisions in connection with any acquisition or other Investment or any disposition of any asset permitted hereunder (net of any amount so added back in any prior period to the extent not so reimbursed within a one-year period) and (ii) the amount of any cash tax benefits related to the tax amortization of intangible assets in such period.

“Consolidated Tax Expense” means, for any period, the tax expense (including federal, state, local and foreign income taxes) of Borrower and its Subsidiaries, for such period, determined on a consolidated basis in accordance with GAAP.

“Contingent Obligation” means, as to any Person, any obligation, agreement, understanding or arrangement of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation, agreement, understanding or arrangement of such Person, whether or not contingent, (a) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth, net equity, liquidity, level of income, cash flow or solvency of the primary obligor, (c) to purchase or lease Property, securities or services primarily for the purpose of assuring the primary obligor of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, (d) with respect to bankers’ acceptances, letters of credit and similar credit arrangements, until a reimbursement or equivalent obligation arises (which reimbursement obligation shall constitute a primary obligation) or (e) otherwise to assure or hold harmless the primary obligor of any such primary obligation against loss (in whole or in part) in respect thereof; provided, however, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or consistent with past practice or any product or service warranties given in the ordinary course of business or consistent with past practice.  The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation, or portion thereof, in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable, whether singly or jointly, pursuant to the terms of the instrument, agreements or other documents or, if applicable, unwritten agreement, evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

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“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise, and the terms “Controls”, “Controlling” and “Controlled” shall have meanings correlative thereto.

“Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the applicable Interest Period with respect to the LIBOR Rate.

“Credit Event” means the making (or deemed making) of a Loan by a Lender.

“Data Center Lease” means the Leases listed on Schedule 1.01(d) and any lease of a data center entered into by a Loan Party after the Closing Date (other than pay-as-you-go or partner site leases).

“Debt Issuance” means the incurrence by any Company of any Indebtedness after the Closing Date (other than as permitted by Section 6.01).

“Debt Service” means, for any period, Cash Interest Expense for such period plus scheduled principal amortization and mandatory principal repayments (whether pursuant to this Agreement or otherwise) of all Indebtedness for such period.

“Default” means any event, occurrence or condition which is, or upon notice, lapse of time or both would constitute, an Event of Default.

“Default Excess” has the meaning set forth in Section 2.16(c).

“Default Period” has the meaning set forth in Section 2.16(c).

“Default Rate” has the meaning set forth in Section 2.06(c).

“Defaulted Loan” has the meaning set forth in Section 2.16(c).

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“Defaulting Lender” means any Lender that (a) has failed to fund its portion of any Borrowing, unless the subject of a good faith dispute between Borrower and such Lender related hereto, (b) has notified Borrower, the Administrative Agent or any other Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend credit generally, (c) has failed, within three (3) Business Days after written request by the Administrative Agent or Borrower, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans (unless the subject of a good faith dispute between Borrower and such Lender); provided that any such Lender shall cease to be a Defaulting Lender under this clause (c) upon receipt of such confirmation by the Administrative Agent or Borrower, (d) has otherwise failed to pay over to Borrower, the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due (unless the subject of a good faith dispute), (e) has (i) been adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its Properties or assets to be, insolvent or (ii) become the subject of a bankruptcy or other Insolvency Proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, unless, in the case of any Lender referred to in this clause (e), Borrower and the Administrative Agent shall be satisfied that such Lender intends, and has all approvals required to enable it, to continue to perform its obligations as a Lender hereunder; provided, however, that no Lender shall be deemed to be a Defaulting Lender under this clause (e) solely by virtue of an Undisclosed Administration or (f) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action.  For the avoidance of doubt, a Lender shall not be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in such Lender or its parent by a Governmental Authority; provided that, as of any date of determination, the determination of whether any Lender is a Defaulting Lender hereunder shall not take into account, and shall not otherwise impair, any amounts funded by such Lender which have been assigned by such Lender to an SPC pursuant to Section 10.04(h).  Any determination by the Administrative Agent that a Lender is a Defaulting Lender shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination by the Administrative Agent to Borrower and each other Lender.

“Deposit Account Control Agreement” has the meaning set forth in Section 5.17.

“Digital AZ Disposition” means the sale of the colocation business and related assets located in 2121 South Price Road, Chandler, Arizona to a third party pursuant to a purchase agreement reasonably acceptable to the Required Lenders.

“Digital GA Disposition” means the sale of the colocation business and related assets located in 250 Williams Street, Atlanta, Georgia to a third party pursuant to a purchase agreement reasonably acceptable to the Required Lenders.

“DIP Credit Agreement” shall have the meaning assigned to such term in the recitals.

“DIP New Money Loans” has the meaning set forth in DIP Credit Agreement.

“DIP Roll Up Loans” has the meaning set forth in DIP Credit Agreement.

“Disposition” means, with respect to any Property, any conveyance, sale, lease, sublease, assignment, transfer or other disposition of such Property (including (i) by way of merger, consolidation or amalgamation, (ii) any sale and leaseback transaction and (iii) any Synthetic Lease).

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“Disqualified Capital Stock” means, with respect to any Person, any Equity Interest which, by its terms (or by the terms of any security or instrument into which it is convertible or for which it is exchangeable or exercisable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than solely for Equity Interests in such Person or in any direct or indirect parent thereof that do not constitute Disqualified Capital Stock and cash in lieu of fractional shares of such Equity Interests), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or before the first anniversary of the Maturity Date, (b) is convertible into or exchangeable or exercisable (unless at the sole option of the issuer thereof) for (i) debt securities or other Indebtedness or (ii) any Equity Interests referred to in (a) above (other than solely for Equity Interests in such Person or in any direct or indirect parent thereof that do not constitute Disqualified Capital Stock and cash in lieu of fractional shares of such Equity Interests), in each case at any time on or before the date that is 91 days following the Maturity Date, or (c) contains any repurchase or payment obligation which may come into effect before the date that is 91 days following the Maturity Date; provided, however, that (i) an Equity Interest in any Person that would not constitute Disqualified Capital Stock but for terms thereof giving holders thereof the right to require such Person to redeem or purchase such Equity Interest upon the occurrence of an “asset sale,” “condemnation event,” a “change of control” or similar event shall not constitute Disqualified Capital Stock if any such requirement becomes operative only after all Secured Obligations under clauses (a) and (b) of the definition thereof (other than contingent reimbursement and indemnification obligations that are not then due and payable ) have been paid in full and all Commitments have terminated or expired and (ii) if an Equity Interest in any Person is issued pursuant to any plan for the benefit of employees of Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by Borrower (or any direct or indirect parent company thereof) or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations of such Person or as a result of such employee’s termination, death, or disability.

“Dividend” means, with respect to any Person, that such Person has declared or paid a dividend or returned any equity capital to the holders of its Equity Interests or authorized or made any other distribution, payment or delivery of Property (other than Qualified Capital Stock of such Person) or cash to the holders of its Equity Interests as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for consideration any of its Equity Interests outstanding (or any options or warrants issued by such Person with respect to its Equity Interests), or set aside or otherwise reserved, directly or indirectly, any funds for any of the foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for consideration any of the outstanding Equity Interests of such Person (or any options or warrants issued by such Person with respect to its Equity Interests).  Without limiting the foregoing, “Dividends” with respect to any Person shall also include all payments made or required to be made by such Person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting aside of or otherwise reserving any funds for the foregoing purposes.

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

“Domestic Subsidiary” means any Subsidiary other than a Foreign Subsidiary.

“Early Opt-in Election” means the occurrence of:

(1)        a determination by the Administrative Agent (acting at the direction of the Required Lenders) that at least five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) as a benchmark interest rate, in lieu of LIBOR, a new benchmark interest rate to replace LIBOR, and

(2)          the election by the Administrative Agent (acting at the direction of the Required Lenders) to declare that an Early Opt-in Election has occurred and the provision by the Administrative Agent of written notice of such election to Borrower.

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

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

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

“Effective Yield” means, as to any tranche of term loans (including, without limitation, the Loans), the effective yield on such tranche of term loans, as applicable, as reasonably determined by the Administrative Agent, taking into account the applicable interest rate margins, interest rate benchmark floors and all fees, including recurring, up-front or similar fees or original issue discount (amortized over four (4) years following the date of incurrence thereof; provided, that (A) if the stated maturity date of a new tranche of term loans, as applicable, is less than four (4) years from the date of determination, then the “Effective Yield” for such tranche of term loans, as applicable, shall be determined using an assumed amortization period equal to the actual remaining life to maturity of such tranche) payable generally to the lenders making such tranche of term loans, as applicable, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared with the lenders thereunder, and (B) with respect to any Indebtedness that includes a “LIBOR floor” or “Base Rate floor,” (i) to the extent that the LIBOR Rate or Base Rate (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the purpose of calculating the Effective Yield and (ii) to the extent that the LIBOR Rate or Base Rate (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield.

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“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.04(b) (subject to such consents, if any, as may be required under Section 10.04(b)).

“Embargoed Person” means any Person that is the subject of sanctions or trade restrictions under (a) United States law, including any Person identified on (i) the “List of Specially Designated Nationals and Blocked Persons” (the “SDN List”) maintained by OFAC and/or on any other similar list (“Other List”) maintained by OFAC pursuant to any authorizing statute including the International Emergency Economic Powers Act, 50 U.S.C. Sections 1701 et seq., the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any executive order or regulation promulgated thereunder, or (ii) the Executive Order, any related enabling legislation or any other similar executive orders or (b) any person that is designated, listed or otherwise identified under Canadian Sanctions (the Legal Requirements referred to in clauses (a) and (b), collectively, “Sanctions Laws”).

“Employee Benefit Plan” means any of (a) any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was maintained, contributed to, or required to be maintained or contributed to by any Company or any of its ERISA Affiliates, (b) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (c) a “plan” as defined in Section 4975 of the Code or (d) 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) assets of any such “employee benefit plan” or “plan”, in each case, excluding any Canadian Pension Plan and any Foreign Plan.

“Environment” means any surface or subsurface physical medium or natural resource, including air, land, soil, surface waters, ground waters, stream and river sediments, biota and any indoor area, surface or physical medium.

“Environmental Claim” means any claim, notice, demand, Order, action, suit, proceeding, or other communication alleging or asserting liability or obligations under or relating to Environmental Law, including liability or obligation for investigation, assessment, remediation, removal, cleanup, Response, corrective action, monitoring, post-remedial or post-closure studies, investigations, operations and maintenance, injury, damage, destruction or loss to natural resources, personal injury, wrongful death, Property damage, indemnification, fines, penalties or other costs resulting from, related to or arising out of (i) the presence, Release or threatened Release of Hazardous Material in, on, into or from the Environment at any location or (ii) any violation of or non-compliance with Environmental Law, and shall include any claim, notice, demand, Order, action, suit or proceeding seeking damages (including the costs of remediation), contribution, indemnification, cost recovery, penalties, fines, indemnities, compensation or injunctive relief resulting from, related to or arising out of the presence, Release or threatened Release of Hazardous Material or alleged injury or threat of injury to health, safety or the Environment.

“Environmental Law” means any and all applicable current and future Legal Requirements relating to health, safety or the Environment, the Release or threatened Release of Hazardous Material, natural resources or natural resource damages, or occupational safety or health.

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“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Environmental Permit” means any permit, license, approval, consent, registration, notification, exemption or other authorization required by or from a Governmental Authority under any Environmental Law.

“Equity Interest” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited), or if such Person is a limited liability company, membership interests and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of Property of, such partnership, whether outstanding on the date hereof or issued on or after the Closing Date, but excluding debt securities convertible or exchangeable into such equity.

“Equity Issuance” means, without duplication, (i) any issuance or sale by Borrower after the Closing Date of any Equity Interests in Borrower (including any Equity Interests issued upon exercise of any warrant or option or equity-based derivative) or any warrants or options or equity-based derivatives to purchase Equity Interests in Borrower, (ii) any Preferred Stock Issuance by Borrower after the Closing Date or (iii) any contribution to the capital of Borrower after the Closing Date.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

“ERISA Affiliate” means, with respect to any Person, any trade or business (whether or not incorporated) that, together with such Person, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code and regulations promulgated under those sections or within the meaning of meaning of Section 4001(b) of ERISA, or solely for purposes of Sections 302 and 303 of ERISA and Sections 412 and 430 of the Code, is treated as a single employer under Section 414 of the Code.  Any former ERISA Affiliate of a Person or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of such Person or such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of such Person or such Subsidiary and with respect to liabilities arising after such period for which such Person or such Subsidiary could reasonably be expected to be liable under the Code or ERISA, but in no event for more than six (6) years after such period if no such liability has been asserted against such Person or such Subsidiary; provided, however, that such Person or such Subsidiary shall continue to be an ERISA Affiliate of such Person or such Subsidiary after the expiration of the six-year period solely with respect to any liability asserted against such Person or such Subsidiary before the expiration of such six-year period.

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“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan; (ii) the failure to meet the minimum funding standard of Section 412 or 430 of the Code and Section 302 or 303 of ERISA with respect to any Pension Plan (whether or not waived) or the failure to make by its due date a required installment under Section 430(j) of the Code or Section 303(j) of ERISA with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by any Company or any of its ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability pursuant to Section 4063 or 4064 of ERISA; (v) the provision to any Company or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to institute proceedings to terminate any Pension Plan or Multiemployer Plan, or the occurrence of any event or condition which could reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (vi) the imposition of liability on any Company or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of any Company or any of its ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by any Company or any of its ERISA Affiliates of notice from any Multiemployer Plan that it is in insolvency pursuant to 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan, or the assets thereof, or against any Company or any of its ERISA Affiliates in connection with any Employee Benefit Plan; (ix) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; (x) the imposition of a Lien pursuant to Section 401(a)(29) or 430(k) of the Code or pursuant to ERISA or otherwise with respect to any Pension Plan or Multiemployer Plan; (xi) the determination that any Pension Plan is considered an at-risk plan or that any Multiemployer Plan is endangered or is in critical status within the meaning of Section 430, 431 or 432 of the Code or Section 303, 304 or 305 of ERISA; (xii) the incurrence by any Company or any of its ERISA Affiliates of any liability under Title IV of ERISA, other than for PBGC premiums not yet due; or (xiii) the occurrence of a non-exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to result in a material liability to any Company or any of its ERISA Affiliates.

“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.

“Eurodollar Borrowing” means a Borrowing comprised of Eurodollar Loans.

“Eurodollar Loan” means any Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate.

“Event of Default” has the meaning set forth in Article VIII.

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“Excess Cash Flow” means, for any Excess Cash Flow Period, the sum, without duplication, of:

(a)          the sum, without duplication, of:

(i)          Consolidated Net Income for such Excess Cash Flow Period;

(ii)         an amount equal to all non-cash charges to the extent deducted in arriving at such Consolidated Net Income (provided, in each case, that if any non-cash charge represents an accrual or reserve for cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Excess Cash Flow in such future period);

(iii)        the decrease, if any, in the Net Working Capital, long-term receivables and long-term prepaid assets and the increase, if any, in long-term deferred revenue and long-term warranty accruals from the beginning to the end of such Excess Cash Flow Period;

(iv)         the reversal, during such Excess Cash Flow Period, of any reserve established pursuant to clause (b)(i) or (xii) below; and

(v)          an amount equal to the aggregate net non-cash loss on dispositions by Borrower and its Subsidiaries during such period (other than dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; minus

(b)          the sum, without duplication, of:

(i)          the amount of any cash Consolidated Tax Expense paid or payable by Borrower and its Subsidiaries with respect to such Excess Cash Flow Period and for which, to the extent required under GAAP, reserves have been established;

(ii)         [reserved];

(iii)        the amount of Debt Service for such Excess Cash Flow Period;

(iv)        [reserved];

(v)          the sum of (i) Capital Expenditures made in cash or accrued during such Excess Cash Flow Period, to the extent funded from Internally Generated Funds, and (ii) cash consideration paid during such Excess Cash Flow Period to make acquisitions not prohibited by this Agreement to the extent financed from Internally Generated Funds;

(vi)          the increase, if any, in the Net Working Capital and long-term receivables, long-term prepaid assets and decreases in long-term deferred revenue and long-term warranty accruals from the beginning to the end of such Excess Cash Flow Period; and

(vii)          an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income (including any amounts included in Consolidated Net Income pursuant to the last sentence of the definition of “Consolidated Net Income” to the extent such amounts are due but not received during such period) and cash charges included in clauses (a) through (j) of the definition of “Consolidated Net Income”;

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(viii)     cash payments by Borrower and its Subsidiaries during such Excess Cash Flow Period in respect of purchase price holdbacks, earn out obligations, or long-term liabilities of Borrower and its Subsidiaries other than Indebtedness to the extent such payments are not expensed during such Excess Cash Flow Period or are not deducted in calculating Consolidated Net Income, to the extent financed with Internally Generated Funds;

(ix)         the amount of Dividends paid in cash by Borrower during such period not prohibited by this Agreement, to the extent that such Dividends are financed with Internally Generated Funds;

(x) the aggregate amount of expenditures actually made by Borrower and its Subsidiaries in cash during such period (including expenditures for the payment of financing fees and cash restructuring charges) to the extent that such expenditures are not expensed during such period or are not deducted in calculating Consolidated Net Income, to the extent that such expenditure was financed with Internally Generated Funds;

(xi) without duplication of amounts deducted from Excess Cash Flow in prior Excess Cash Flow Periods, the aggregate consideration required to be paid in cash or Cash Equivalents by Borrower or any of its Subsidiaries pursuant to binding contract commitments, letters of intent or purchase orders (the “Contract Consideration”), in each case, entered into prior to or during such Excess Cash Flow Period, relating to Investments permitted under Section 6.04 or Capital Expenditures (including Capitalized Software Expenditures or other purchases of intellectual property) to be consummated or made during a subsequent Excess Cash Flow Period; provided, that to the extent the aggregate amount of Internally Generated Funds actually utilized to finance such Investments or Capital Expenditures during such Excess Cash Flow Period is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such Excess Cash Flow Period; and

(xii)       the amount of taxes (including penalties and interest) paid in cash and/or tax reserves set aside or payable (without duplication) in such Excess Cash Flow Period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such Excess Cash Flow Period.

“Excess Cash Flow Period” means (i) the period taken as one accounting period from January 1, 2020, and ending on December 31, 2020, and (ii) each fiscal year of Borrower thereafter.

“Exchange Act” means the Securities Exchange Act of 1934.

“Excluded Accounts” has the meaning set forth in the Security Agreement.

“Excluded Property” has the meaning set forth in the Security Agreement.

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“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of Borrower hereunder, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed by a jurisdiction as a result of such recipient being organized under the laws of, or having its principal office located in, or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such tax, or (ii) that are Other Connection Taxes, (b) in the case of a Foreign Lender (other than an Eligible Assignee pursuant to a request by Borrower under Section 2.16), any United States federal withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding tax pursuant to Section 2.15, (c) any withholding tax that is attributable to such Foreign Lender’s failure or inability to comply with Section 2.15(f), and (d) any United States federal withholding tax imposed as a result of FATCA.

“Executive Order” has the meaning set forth in Section 3.21.

“Existing Lien” has the meaning set forth in Section 6.02(c).

“Exit Transactions” means, collectively, the entry of the Confirmation Order, the transactions contemplated by the Approved Plan, the entry into the Second Out Term Loan Facility and the deemed funding of the loans thereunder, the deemed funding of the Loans on the Closing Date, the consummation of the other transactions contemplated by this Agreement and the Approved Plan, the consummation of any other transactions in connection with the foregoing, and the payment of the fees and expenses incurred in connection with any of the foregoing (including the Transaction Expenses).

“Facility” shall have the meaning assigned to such term in the recitals.

“Fair Market Value” means, with respect to any asset (including any Equity Interests of any Person), the price at which a willing buyer, not an Affiliate of the seller, and a willing seller who does not have to sell, would agree to purchase and sell such asset, as determined in good faith by the Board of Directors or pursuant to a specific delegation of authority by such Board of Directors.

“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) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code (or any successor provisions described above).

“FCC” means the U.S. Federal Communications Commission, or any successor agency of the federal government administering the Communications Act, including its staff acting under delegated authority.

“Federal Funds Effective Rate” means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System of the United States, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary to the next 1/100th of 1%) of the quotations for the day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

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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.

“Fee Letter” means the confidential Agent Fee Letter, dated May 8, 2020, among Borrower and the Agents.

“Fees” means the Administrative Agent Fees and the other fees referred to in Section 2.05.

“Finance Lease” means any lease of property classified as a “finance lease” under GAAP.

“Finance Lease Obligations” of any Person, means the amount of obligations of such Person under Finance Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with GAAP.

“Financial Officer” of any Person means the chief financial officer, principal accounting officer, treasurer, assistant treasurer, controller or assistant controller of such Person.

“First Variance Period” means (a) in respect of Actual Operating Disbursement Amounts, one calendar week ending on March 13, 2020, and (b) in respect of Actual Cash Receipts, the period commencing three weeks prior to, and ending on, March 13, 2020 (which shall include two weeks of Actual Cash Receipts plus one week of projected receipts).

“Flood Hazard Property” means a property in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.

“Foreign Entity” means any entity not organized under the laws of the United States, any state thereof or the District of Columbia.

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

“Foreign Plan” means any employee benefit, deferred compensation, registered pension, or other retirement or superannuation plan, fund, program, policy, commitment, arrangement or agreement whether oral or written, funded or unfunded, sponsored, established, maintained or contributed to, or required to be contributed to, or with respect to which any liability is borne by any Company with respect to employees, officers or directors employed, or otherwise engaged, outside the United States and Canada.

“Foreign Subsidiary” means a Subsidiary that is organized under the laws of a jurisdiction other than the United States or any state thereof or the District of Columbia.

“Funded Debt” means all Indebtedness of Borrower and its Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans and the Indebtedness under the Second Out Term Loan Credit Agreement.

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“Funding Default” has the meaning set forth in Section 2.16(c).

“GAAP” means generally accepted accounting principles in the United States, or successors thereto (e.g., subject to Section 1.04, IFRS), applied on a consistent basis.  For purposes of this Agreement, a generally accepted accounting principle shall be deemed to constitute GAAP (and a change in GAAP, if applicable) on the earliest date on which it is permitted to be adopted by any Company under the Legal Requirements applicable thereto.

“Governmental Authority” means any federal, state, provincial, territorial, local or foreign (whether civil, administrative, criminal, military or otherwise) court, central bank or governmental agency, tribunal, authority, instrumentality self-regulatory organization, or regulatory body, including the FCC and any PUC, or any subdivision thereof or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers of or pertaining any government or any court, in each case whether associated with a state of the United States, the United States, a province or territory of Canada, Canada or another Foreign Entity or government (including any supra-national bodies such as the European Union or the European Central Bank).

“Governmental Real Property Disclosure Requirements” means any Legal Requirement of any Governmental Authority requiring notification of the buyer, lessee, mortgagee, assignee or other transferee of any Real Property, facility, establishment or business, or any notification, registration or filing to or with any Governmental Authority, in connection with the Disposition (including any transfer of control) of any Real Property, facility, establishment or business, as may be required under any applicable Environmental Law or of any actual or threatened presence or Release in, on, into or from the Environment, or the use, disposal or handling of Hazardous Material on, at, under, from or near the Real Property, facility, establishment or business to be sold, acquired, leased, mortgaged, assigned or transferred.

“Granting Lender” has the meaning set forth in Section 10.04(h).

“Guaranteed Obligations” has the meaning set forth in Section 7.01.

“Guarantees” means the guarantees issued pursuant to Article VII by the Guarantors.

“Guarantor” means each Subsidiary listed on Schedule 1.01(b), and each other Subsidiary of any Loan Party that is or becomes a party to this Agreement and the Security Documents pursuant to Section 5.11.

“Hazardous Materials” means hazardous substances, hazardous wastes, hazardous materials, polychlorinated biphenyls (“PCBs”) or any substance or compound containing PCBs, asbestos or any asbestos-containing materials in any form or condition, lead-based paint, urea formaldehyde, pesticides, radon or any other radioactive materials including any source, special nuclear or by -product material, petroleum, petroleum products, petroleum-derived substances, crude oil or any fraction thereof, underground or aboveground storage tanks, whether empty or containing any substance, any mold, microbial or fungal contamination that could pose a risk to human health or the Environment or would negatively impact the condition of the Real Property or any other pollutants (including greenhouse gases), contaminants, chemicals, wastes, materials, compounds, constituents or substances, defined under, subject to regulation under, or which can give rise to liability or obligations under, any Environmental Laws.

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“Hedging Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, currency swap transactions, cross-currency rate swap transactions, currency options, cap transactions, floor transactions, collar transactions, spot contracts, futures contracts or other liabilities for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract or any other similar transactions or any combination of any of the foregoing (including any options or warrants to enter into any of the foregoing), whether or not any such transaction is governed by, or otherwise subject to, any master agreement or any netting agreement and (b) any and all transactions or arrangements of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement (or similar documentation) published from time to time by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such agreement or documentation, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“Hedging Obligations” means obligations under or with respect to Hedging Agreements.

“Hedging Termination Value” means, in respect of any one or more Hedging Agreements, after taking into account the effect of any netting agreements relating to such Hedging Agreements (to the extent, and only to the extent, such netting agreements are legally enforceable in Insolvency Proceedings against the applicable counterparty obligor thereunder), (i) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (ii) for any date before the date referenced in preceding clause (i), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender or any Affiliate of a Lender).

“Houston Disposition” means the sale of certain assets and liabilities relating to the data center operated by Borrower at 1301 Fannin Street, Houston, Texas 77002, pursuant to that certain Asset Purchase Agreement, reasonably acceptable to the Required Lender, by and among Borrower, 1301 Fannin Tenant, LLC, a Delaware limited liability company, as buyer and, solely for purposes of Section 1.7(g) of the Asset Purchase Agreement, Netrality Properties, LP.

“Hypothecary Representative” has the meaning assigned to such term in Section 9.02.

“IFRS” means International Financial Reporting Standards issued by the International Accounting Standards Board (or the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or the SEC, as the case may be), as in effect from time to time.

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“Immaterial Subsidiary” means, as of any date of determination, any Wholly Owned Subsidiary of Borrower that is a Foreign Subsidiary and (a) whose total assets (on a consolidated basis including its Subsidiaries as determined in accordance with GAAP) as of the last day of the most recently ended Test Period did not exceed 2.50% of the consolidated total assets of Borrower and its Subsidiaries (as determined in accordance with GAAP) and (b) whose Consolidated EBITDA attributable to such Subsidiary (on a consolidated basis including its Subsidiaries as determined in accordance with GAAP) for such Test Period did not exceed 2.50% of the Consolidated EBITDA of Borrower and its Subsidiaries (as determined in accordance with GAAP).

“Impacted Interest Period” has the meaning set forth in the definition of “LIBOR Rate.”

“Increasing Lenders” has the meaning set forth in Section 2.17(b).

“Incremental Cap” means $25,000,000 minus the original principal amount of any “Incremental Loans” made under and as defined in the Second Out Term Loan Credit Agreement as in effect on the date hereof.

“Incremental Loan” means term loans made pursuant to Section 2.17.

“Incremental Loan Amendment” has the meaning set forth in Section 2.17(b)

“Incurrence Leverage Level” means 0.25% lower than the then-applicable Projected Total Net Leverage Ratio.

“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or advances; (b) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or similar instruments; (c) all obligations of such Person under conditional sale or other title retention agreements relating to Property purchased by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property); (d) all obligations of such Person issued or assumed as part of the deferred purchase price of Property or services (excluding trade accounts payable and accrued obligations incurred in the ordinary course of business and any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP); (e) all Indebtedness secured by any Lien on Property owned or acquired by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not the obligations secured thereby have been assumed, but limited to the lower of (i) the Fair Market Value of such Property and (ii) the amount of the Indebtedness secured; (f) all Capital Lease Obligations, Purchase Money Obligations and Synthetic Lease Obligations of such Person; (g) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Equity Interests of such Person, valued, in the case of a redeemable preferred Equity Interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (h) all Hedging Obligations, valued at the Hedging Termination Value thereof; (i) all obligations of such Person for the reimbursement of any obligor in respect of letters of credit, letters of guaranty, bankers’ acceptances and similar credit transactions; (j) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of Disqualified Capital Stock and (k) all Contingent Obligations of such Person in respect of Indebtedness or obligations of others of the kinds referred to in clauses (a) through (j) above.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in, or other relationship with, such entity, except (other than in the case of general partner liability) to the extent that terms of such Indebtedness expressly provide that such Person is not liable therefor.

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“Indemnified Taxes” means Taxes other than Excluded Taxes.

“Indemnitee” has the meaning set forth in Section 10.03(b).

“Indemnitee Related Persons” has the meaning set forth in Section 10.03(b).

“Information” has the meaning set forth in Section 10.12.

“Insolvency Laws” means the Bankruptcy Code and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar federal or state Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally, including the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), the Winding-up and Restructuring Act (Canada) and the Civil Code of Quebec.

“Insolvency Proceeding” means (i) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (ii) any general assignment for the benefit of creditors, formal or informal moratorium, composition, marshaling of assets for creditors or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each case, undertaken under United States federal or state or non-United States federal or state Legal Requirements, including any Insolvency Laws.

“Insurance Policies” means the insurance policies and coverages required to be maintained by each Loan Party that is an owner or lessee of Material Property with respect to the applicable Material Property pursuant to Section 5.04 and all renewals and extensions thereof.

“Insurance Requirements” means, collectively, all provisions of the Insurance Policies, all requirements of the issuer of any of the Insurance Policies and all Orders, rules, regulations and any other requirements of the National Board of Fire Underwriters (or any other body exercising similar functions) binding upon any Loan Party that is an owner or lessee of Material Property and applicable to the Material Property or any use or condition thereof.

“Intellectual Property” has the meaning set forth in Section 3.06(a).

“Intercompany Note” means the intercompany demand promissory note substantially in the form of Exhibit D delivered on the Closing Date.

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“Intercreditor and Collateral Agency Agreement” means the Intercreditor and Collateral Agency Agreement, dated as of the date hereof, by and among the Administrative Agent, the Second Out Term Loan Administrative Agent, the Loan Parties and each other Person party thereto from time to time.

“Interest Election Request” means a request by Borrower to convert or continue a Borrowing in accordance with Section 2.08(b).

“Interest Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December to occur during any period in which such Loan is outstanding, (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and (c) with respect to any Loan, the Maturity Date and, after such maturity, on each date on which demand for payment is made.

“Interest Period” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one (1) or three (3) months thereafter, as Borrower may elect; provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

“Internally Generated Funds” means funds not constituting the proceeds of any Indebtedness, Debt Issuance, Equity Issuance, Asset Sale or Casualty Event (in each case, without regard to the exclusions from the definitions thereof, other than in the case of an Asset Sale only, any Disposition of assets permitted by Sections 6.04(b), 6.06(g) or 6.06(h)).

“Interpolated Rate” has the meaning set forth in the definition of “LIBOR Rate.”

“Investments” has the meaning set forth in Section 6.04.

“iWeb Disposition” means the sale of iWeb Technology Inc. and its subsidiaries (or a division thereof) to a third party, whether through a sale of the capital stock of iWeb Technology Inc., a sale of assets, a merger or any similar transaction, pursuant to a purchase agreement reasonably acceptable to the Required Lenders.

“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit 3 to the Security Agreement.

“Leases” means any and all leases, subleases, tenancies, options, concession agreements, rental agreements, occupancy agreements, franchise agreements, access agreements and any other agreements (including all amendments, extensions, replacements, renewals, modifications and/or guarantees thereof), whether or not of record and whether now in existence or hereafter entered into, affecting the use or occupancy of all or any portion of any Real Property.

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“Legal Requirements” means, as to any Person, the Organizational Documents of such Person, and any treaty, law (including the common law), statute, ordinance, code, rule, regulation, guidelines, license, permit requirement, Order or determination of an arbitrator or a court or other Governmental Authority, and the interpretation or administration thereof, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject, in each case whether or not having the force of law.  For purposes of Section 2.15, the term “applicable Legal Requirements” shall include FATCA.

“Lender Party” means any of the Lenders, Administrative Agent and Collateral Agent; and “Lender Parties” means all such Persons, collectively.

“Lenders” means (a) the financial institutions and other Persons party hereto as “Lenders” on the date hereof, and (b) each financial institution or other Person that becomes a party hereto pursuant to an Assignment and Assumption (including pursuant to Section 2.17), other than, in each case, any such financial institution or Person that has ceased to be a party hereto pursuant to an Assignment and Assumption.

“LIBOR Rate” means, with respect to any Eurodollar Borrowing for any Interest Period therefor, the rate per annum equal to the arithmetic mean (rounded to the nearest 1/100th of 1%) of the offered rates for deposits in Dollars with a term comparable to such Interest Period that appears on Reuters Screen LIBOR01 Page (or such other page as may replace such page on such service for the purpose of displaying the rates at which Dollar deposits are offered by leading banks in the London interbank deposit market as designated by the Administrative Agent from time to time) (the “Screen Rate”) at approximately 11:00 a.m., London, England time, on the second full Business Day preceding the first day of such Interest Period; provided, however, that (i) if the Screen Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement, (ii) if no comparable term for an Interest Period (the “Impacted Interest Period”) is available, the LIBOR Rate shall be determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between:  (a) the applicable Screen Rate (for the longest period for which the applicable Screen Rate is available) that is shorter than the Impacted Interest Period and (b) the applicable Screen Rate for the shortest period (for which such Screen Rate is available) that exceeds the Impacted Interest Period, in each case, for such Interest Period (such rate, the “Interpolated Rate”) and (iii) if Reuters Screen LIBOR01 Page shall at any time no longer exist, “LIBOR Rate” means, with respect to each day during each Interest Period pertaining to Eurodollar Borrowings comprising part of the same Borrowing, the rate per annum equal to the rate at which the Administrative Agent is offered deposits in Dollars at approximately 11:00 a.m., London, England time, two (2) Business Days before the first day of such Interest Period in the London interbank market for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to its portion of the amount of such Eurodollar Borrowing to be outstanding during such Interest Period.  Notwithstanding the rate determined pursuant to the foregoing, in no event shall the LIBOR Rate be less than 1.00%.  “Reuters Screen LIBOR01 Page” means the display designated on the Reuters 3000 Xtra Page (or such other page as may replace such page on such service for the purpose of displaying the rates at which Dollar deposits are offered by leading banks in the London interbank deposit market).

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“Lien” means, with respect to any Property, (a) any mortgage, deed of trust, lien (statutory or other), judgment liens, pledge, encumbrance, claim, charge, assignment, hypothecation, hypothec, deposit arrangement, security interest or encumbrance of any kind or any arrangement to provide priority or preference, including any easement, servitude, right-of-way or other encumbrance on title to Real Property, in each of the foregoing cases whether voluntary or imposed or arising by operation of law, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement and any lease in the nature thereof and any option, call, trust, contractual, statutory, UCC or PPSA (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such Property, and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

“Loan Documents” means this Agreement, the Notes (if any), the Security Documents, the Post-Closing Agreement, the Intercompany Note, each Joinder Agreement, any other agreements, documents and instruments providing for or evidencing any other Obligations, and any other document or instrument executed or delivered at any time in connection with any Obligations, including any intercreditor or joinder agreement among holders of Obligations, to the extent such are effective at the relevant time, as each may be amended, restated, supplemented, modified, renewed or extended from time to time, and, except for purposes of Section 10.02(b), the Fee Letter.

“Loan Parties” means Borrower and the Guarantors.

“Loans” means the term loans made (or deemed made) under Section 2.01 and Incremental Loans.

“Margin Stock” has the meaning set forth in Regulation U.

“Master Agreement” has the meaning set forth in the definition of “Hedging Agreement.”

“Material Adverse Effect” means (a) a material adverse effect on, or material adverse change in the business, property, operations, condition (financial or otherwise) or results of operations of Borrower and its Subsidiaries, taken as a whole (excluding, in the case of (a) and (d)(i) below, (i) any matters publicly disclosed in writing or disclosed to the Administrative Agent and the Lenders in writing prior to the filing of the Chapter 11 Cases, (ii) any matters disclosed in the schedules hereto, (iii) any matters disclosed in any first day pleadings or declarations, (iv) the filing of the Chapter 11 Cases, the events and conditions related and/or leading up thereto, the announcement thereof and the effects thereof and any action required to be taken under the Loan Documents, (v) the Exit Transactions and (vi) any defaults under agreements as a result of the Chapter 11 Cases that are stayed by the Bankruptcy Court), (b) material impairment of the ability of the Loan Parties, taken as a whole, to perform any of their payment obligations under any Loan Document, (c) a material impairment of the rights or remedies available to the Lenders, the Collateral Agent or the Administrative Agent under any Loan Document, taken as a whole, or (d) a material adverse effect on (i) the Collateral, taken as a whole, or (ii) the Liens in favor of the Collateral Agent (for its benefit and for the benefit of the other Secured Parties) on the Collateral, taken as a whole, or the validity, enforceability, perfection or priority of such Liens, taken as a whole.

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“Material Adverse Lease Event” means any event of default or default under any Lease or any event that with the passage of time would become an event of default or default under any Lease.

“Material Agreement” means any agreement, contract or instrument to which any Company is a party or by which any Company or any of its properties is bound (i) pursuant to which any Company is required to make payments or other consideration, or will receive payments or other consideration, in excess of $5,000,000 in any twelve month period, (ii) the Data Center Leases, or (iii) the termination or suspension of which, or the failure of any party thereto to perform its obligations thereunder, could reasonably be expected to have a Material Adverse Effect.

“Material Property” means (a) each Real Property identified on Schedule 1.01(a) attached hereto and (b) each Real Property, if any, which shall be subject to a mortgage delivered after the Closing Date pursuant to Section 5.11.

“Maturity Date” means the earlier of (a) May 8, 2023 and (b) the date on which the Obligations become due and payable pursuant to this Agreement, whether by acceleration or otherwise.

“Maximum Rate” has the meaning set forth in Section 10.13.

“Mortgage” means an agreement, including a mortgage, deed of trust, deed of hypothec or any other document, creating and evidencing a Lien on a Material Property to secure the Secured Obligations, which shall be in form and substance reasonably satisfactory to the Collateral Agent, in each case, with such schedules and including such provisions as shall be necessary to conform such document to applicable local or foreign law or as shall be customary under applicable local or foreign Legal Requirements.

“Multiemployer Plan” means a multiemployer plan within the meaning of Section 4001(a)(3) or Section 3(37) of ERISA, (a) to which any Company or any of its ERISA Affiliates is then making or accruing an obligation to make contributions, (b) to which any Company or any of its ERISA Affiliates has within the preceding six plan years made or been obligated to make contributions, including for these purposes, any Person which ceased to be an ERISA Affiliate during such six-year period, or (c) with respect to which any Company or any of its ERISA Affiliates could incur liability, whether absolute or contingent.

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“Net Cash Proceeds” means:

(a)          with respect to any Asset Sale (other than any issuance or sale of Equity Interests), an amount equal to the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable, or by the sale, transfer or other Disposition of any non-cash consideration received in connection therewith or otherwise, but only as and when received) received by any Company (including cash proceeds subsequently received (as and when received by any Company) in respect of non-cash consideration initially received) net of (i) selling expenses (including brokers’ fees or commissions, legal, investment banking, accounting and other professional and transactional fees, transfer and similar taxes and Borrower’s good faith estimate of income taxes paid or payable in connection with such sale (after taking into account any available tax credits or deductions and any tax sharing arrangements)), (ii) amounts provided as a reserve, in accordance with GAAP, against (x) any liabilities under any indemnification obligations associated with such Asset Sale or (y) any other liabilities retained by any Company associated with the properties sold in such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve (other than as a result of payments made thereunder), such amounts shall constitute Net Cash Proceeds), and (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money that is secured by a Lien on the properties sold in such Asset Sale (so long as such Lien was permitted to encumber such properties under the Loan Documents at the time of such sale) and which is repaid with such proceeds (other than any such Indebtedness assumed by the purchaser of such properties);

(b)          with respect to any (i) Debt Issuance, (ii) Equity Issuance or (iii) other issuance or sale of Equity Interests by Borrower or any of its Subsidiaries, an amount equal to the cash proceeds thereof received by any Company, net of fees, commissions, costs and other expenses incurred in connection therewith; and

(c)          with respect to any Casualty Event, an amount equal to the cash insurance proceeds (other than business interruption insurance proceeds), condemnation awards and other compensation received by any Company in respect thereof, net of all costs and expenses incurred in connection with the collection of such proceeds, awards or other compensation in respect of such Casualty Event.

“Net Working Capital” means, at any time, Consolidated Current Assets at such time minus Consolidated Current Liabilities at such time.

“New Lender” has the meaning set forth in Section 2.17.

“Non-Public Information” means (i) material non-public information (within the meaning of United States federal, state or other applicable securities laws) with respect to Borrower or its Subsidiaries or their securities and (ii) information of a type that would be material non-public information (within the meaning of United States federal, state or other applicable securities laws) relating to Borrower if Borrower were a public reporting company with respect to Borrower or its Subsidiaries or their respective securities.

“Notes” means any notes evidencing the Loans, in each case issued pursuant to Section 2.04(e), if any, substantially in the form of Exhibit I.

“NYFRB” means the Federal Reserve Bank of New York.

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“Obligations” means (a) all obligations of Borrower and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any Insolvency Proceeding, regardless of whether allowed or allowable in such Insolvency Proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any Insolvency Proceeding, regardless of whether allowed or allowable in such Insolvency Proceeding), of Borrower and the other Loan Parties under this Agreement and the other Loan Documents, and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of Borrower and the other Loan Parties under or pursuant to this Agreement and the other Loan Documents, in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising.

“OFAC” has the meaning set forth in Section 3.21.

“Officers’ Certificate” means a certificate executed by (i) the chairman of the Board of Directors (if an officer), the chief executive officer or the president and (ii) one of the Financial Officers, each in his or her official (and not individual) capacity.

“Order” means any judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction.

“Organizational Documents” means, with respect to any Person, (i) in the case of any corporation, the certificate of incorporation, articles of incorporation or deed of incorporation and bylaws (or similar constituent documents) of such Person, (ii) in the case of any limited liability company, the certificate or articles of formation or organization and operating agreement or memorandum and articles of association (or similar constituent documents) of such Person, (iii) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar constituent documents) of such Person (and, where applicable, the equityholders or shareholders registry of such Person), (iv) in the case of any general partnership, the partnership agreement (or similar constituent document) of such Person and (v) in any other case, the functional equivalent of the foregoing.

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

“Other List” has the meaning set forth in the definition of “Embargoed Person.”

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.16).

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“Participant” has the meaning set forth in Section 10.04(e).

“Participant Register” has the meaning set forth in Section 10.04(e).

“Patriot Act” has the meaning set forth in Section 3.21(a).

“PBGC” means the Pension Benefit Guarantee Corporation referred to and defined in ERISA.

“Pension Plan” means any Employee Benefit Plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA (a) which is maintained or contributed to by any Company or any of its ERISA Affiliates, (b) to which any Company or any of its ERISA Affiliates has within the preceding six plan years made or been obligated to make contributions, including for these purposes, any Person which ceased to be an ERISA Affiliate during such six-year period, or (c) or with respect to which any Company or any of its ERISA Affiliates could incur liability, whether absolute or contingent (including under Section 4069 of ERISA).

“Perfection Certificate” means a perfection certificate in the form of Exhibit E-1 or any other form approved by the Collateral Agent, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.

“Perfection Certificate Supplement” means a perfection certificate supplement in the form of Exhibit E-2 or any other form approved by the Collateral Agent.

“Permitted Liens” has the meaning set forth in Section 6.02.

“Person” means any natural person, corporation, business trust, joint venture, trust, association, company (whether limited in liability or otherwise), partnership (whether limited in liability or otherwise) or Governmental Authority, or any other entity, in any case, whether acting in a personal, fiduciary or other capacity.

“Petition Date” has the meaning set forth in the recitals to this Agreement.

“Platform” means IntraLinks, SyndTrak or a substantially similar electronic transmission system.

“Pledgor” means each Company listed on Schedule 1.01(c), and each other Subsidiary of any Loan Party that is or becomes a party to this Agreement (in its capacity as a Guarantor) and the Security Documents pursuant to Section 5.11.

“Post-Closing Agreement” means that certain Post-Closing Agreement dated as of the date hereof among the Collateral Agent, the Administrative Agent and Borrower.

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“PPSA” means the Personal Property Security Act as in effect from time to time (except as otherwise specified) in any applicable province or jurisdiction, or, in the case of the Province of Quebec, the Civil Code of Quebec.

“Preferred Stock” means, with respect to any Person, any and all preferred or preference Equity Interests (however designated) of such Person whether now outstanding or issued after the Closing Date.

“Preferred Stock Issuance” means the issuance or sale by any Company of any Preferred Stock after the Closing Date.

“Prepackaged Plan” shall have the meaning assigned to such term in the recitals.

“Pre-Petition Agent” means Jefferies Finance LLC, in its capacity as administrative agent and collateral agent under the Pre-Petition Credit Agreement.

“Pre-Petition Credit Agreement” means that certain Credit Agreement dated April 6, 2017, among Borrower, the Guarantors, the Pre-Petition Agent, the Pre-Petition Lenders and the other parties thereto (as amended by that certain First Amendment to Credit Agreement dated as of June 28, 2017, that certain Second Amendment to Credit Agreement dated as of February 6, 2018, that certain Incremental and Third Amendment to Credit Agreement dated as of February 28, 2018, that certain Fourth Amendment to Credit Agreement dated as of April 9, 2018, that certain Incremental and Fifth Amendment to Credit Agreement dated as of August 28, 2018, that certain Sixth Amendment to Credit Agreement dated as of May 8, 2019, that certain Seventh Amendment to Credit Agreement dated as of October 29, 2019, and that certain Incremental and Eighth Amendment to Credit Agreement dated as of March 13, 2020).

“Pre-Petition Lenders” means the Lenders under and as defined in the Pre-Petition Credit Agreement.

“Prior Week” means for any week, the immediately preceding calendar week (Saturday through Friday) ending on the Friday of such week.

“Projected Total Net Leverage Ratio” means the Total Net Leverage Ratio covenant level for each Test Period set forth in Section 6.10, which such covenant levels (a) shall be determined by Borrower within 45 days after the date Borrower delivers the financial statements required under Section 5.01(b) for the fiscal quarter ending June 30, 2020, (b) shall be approved by the Required Lenders and (c) shall be set utilizing a 30% cushion to projected Consolidated EBITDA for each Test Period indicated in Section 6.10.

“Property” means any right, title or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible and including Equity Interests of any Person and whether now in existence or owned or hereafter entered into or acquired, including all Real Property, cash, securities, accounts, revenues and contract rights.

“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.

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“Public Lenders” means Lenders that do not wish to receive Non-Public Information with respect to Borrower or its Subsidiaries.

“PUC” means any state public service or public utility commission or other state Governmental Authority that exercises jurisdiction over the rates or services or the acquisition, construction or operation of any telecommunications system of any person who owns, constructs or operates any telecommunications system, in each case by reason of the nature or type of the business subject to regulation and not pursuant to laws and regulations of general applicability to persons conducting business in such state.

“Purchase Money Obligation” means, for any Person, the obligations of such Person in respect of Indebtedness (including Capital Lease Obligations) incurred for the purpose of financing all or any part of the purchase price of any fixed or capital assets (including Equity Interests of any Person owning fixed or capital assets) or the cost of installation, construction, repair, replacement or improvement of any fixed or capital assets provided, however, that (i) such Indebtedness is incurred within 120 days after such acquisition, installation, construction, repair, replacement or improvement of such fixed or capital assets (including Equity Interests of any Person owning the applicable fixed or capital assets) by such Person and (ii) the amount of such Indebtedness does not exceed the lesser of 100% of the Fair Market Value of such fixed or capital asset or the cost of the acquisition, installation, construction or improvement thereof, as the case may be.

“Qualified Capital Stock” of any Person means any Equity Interests of such Person that are not Disqualified Capital Stock.

“Real Property” means, collectively, all right, title and interest (including any leasehold, fee, mineral or other estate) in and to any and all parcels of or interests in real Property owned, leased or operated by any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other Property and rights incidental to the ownership, lease or operation thereof.

“Register” has the meaning set forth in Section 10.04(c).

“Regulation D” means Regulation D of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Regulation U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Regulation X” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Regulatory Licenses” has the meaning set forth in Section 3.01(a).

“Related Person” means, with respect to any Person, (a) each Affiliate of such Person and each of the officers, directors, partners, trustees, employees, affiliates, shareholders, Advisors, agents, attorneys-in-fact and Controlling Persons of each of the foregoing, and (b) if such Person is an Agent, each other Person designated, nominated or otherwise mandated by or assisting such Agent pursuant to Section 9.05 or any comparable provision of any Loan Document.

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“Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any Hazardous Materials in, into, onto, from or through the Environment or any Real Property (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Materials).

“Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.

“Required Lenders” means, at any date of determination, Lenders having Loans and Commitments representing more than 50% of the sum of all Loans outstanding and unused Commitments at such time.

“Reserve Regulations” has the meaning set forth in the definition of “Statutory Reserves.”

“Response” means (a) “response” as such term is defined in CERCLA, 42 U.S.C. § 9601(25) or any words of similar import defined under other applicable Environmental Law, or (b) all other actions required by any Governmental Authority or voluntarily undertaken to (i) clean up, remove, treat, remediate, contain, assess, abate, monitor or in any other way address any Hazardous Materials at, in, on, under or from any Real Property, or otherwise in the Environment, (ii) prevent, stop, control or minimize the Release or threat of Release, or minimize the further Release, of any Hazardous Material, or (iii) perform studies, investigations, maintenance or monitoring in connection with, following, or as a precondition to or to determine the necessity of, the actions set forth in clause (i) or (ii) above.

“Responsible Officer” of any Person means any executive officer or Financial Officer of such Person and any other officer or similar official thereof with significant responsibility for the administration of the obligations of such Person in respect of this Agreement.

“Restricted Indebtedness” means Indebtedness of any Company, the payment, prepayment, repurchase, defeasance or acquisition for value of which is restricted under Section 6.11(a).

“Reuters Screen LIBOR01 Page” has the meaning set forth in the definition of “LIBOR Rate.”

“Rolling Four Week Variance Period” means each cumulative period of four weeks ending on the Friday of each of the calendar week ending after May 8, 2020.

“Sanctioned Country” means at any time, a country or territory which is itself the subject or target of any Sanctions Laws (including as of the date hereof, Crimea Region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria).

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“Sanctions Laws” has the meaning set forth in the definition of “Embargoed Person.”

“Sarbanes-Oxley Act” means the United States Sarbanes-Oxley Act of 2002, as amended from time to time and, and any successor statute.

“Screen Rate” has the meaning set forth in the definition of “LIBOR Rate.”

“SDN List” has the meaning set forth in the definition of “Embargoed Person.”

“SEC” means, the Securities and Exchange Commission (or successors thereto or an analogous Governmental Authority).

“Second Out Term Loan Administrative Agent” means Wilmington Trust, National Association, as administrative agent under the Second Out Term Loan Documents.

“Second Out Term Loan Credit Agreement” shall mean the Second Out Term Loan Credit Agreement, dated as of the date hereof, among Borrower, as borrower, the Guarantors, as guarantors, the lenders party thereto, and Wilmington Trust, National Association, as administrative agent and collateral agent, as such document may be amended, restated, supplemented, amended and restated, extended, renewed, refunded, replaced, refinanced, supplemented or otherwise modified from time to time in accordance with the terms hereof.

“Second Out Term Loan Documents” shall mean (i) the Second Out Term Loan Credit Agreement and the other “Loan Documents” under and as defined in therein, as each such document may be amended, renewed, restated, supplemented or otherwise modified from time to time or (ii) the “Second Out Loan Documents” as defined in (and in effect) at such time under the Intercreditor and Collateral Agency Agreement.

“Second Out Term Loan Facility” shall have the meaning assigned to such term in the recitals.

“Second Out Term Loan Lenders” means “Lenders” as defined in the Second Out Term Loan Credit Agreement.

“Second Out Term Loans” means “Loans” as defined in the Second Out Term Loan Credit Agreement.

“Second Variance Period” means (a) in respect of Actual Operating Disbursement Amounts, two calendar week ending on [         ], 2020, and (b) in respect of Actual Cash Receipts, the period commencing four weeks prior to, and ending on, [         ], 2020 (which shall include two weeks of Actual Cash Receipts plus two weeks of projected receipts).

“Secured Obligations” means the Obligations (including, for the avoidance of doubt, Obligations in respect of any Incremental Loans permitted hereunder).

“Secured Obligations” means the Obligations (including, for the avoidance of doubt, Obligations in respect of any Incremental Loans permitted hereunder).

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“Secured Parties” means, collectively with respect to the Obligations, the Lenders, the Administrative Agent and the Collateral Agent.

“Securities Account Control Agreement” means all Property pledged or granted as collateral pursuant to the Security Agreement delivered on the Closing Date or thereafter pursuant to Section 5.17; provided that, for the avoidance of doubt, Excluded Property shall not constitute Security Agreement Collateral.

“Securities Act” means the Securities Act of 1933, as amended from time to time and, and any successor statute.

“Securities Collateral” has the meaning set forth in the Security Agreement.

“Security Agreement” means a Security Agreement dated as of the date hereof among the Loan Parties and the Collateral Agent for the benefit of the Secured Parties, as the same may be amended, restated, modified or supplemented from time to time.

“Security Agreement Collateral” means all Property pledged or granted as collateral pursuant to the Security Agreement delivered on the Closing Date or thereafter pursuant to Section 5.11; provided that, for the avoidance of doubt, Excluded Property shall not constitute Security Agreement Collateral.

“Security Documents” means the Intercreditor and Collateral Agency Agreement, the Security Agreement, each Deposit Account Control Agreement, the Canadian Deed of Hypothec, each Mortgage, and each other security document, deed of hypothec or pledge agreement delivered in accordance with applicable local or foreign Legal Requirements to grant a valid, enforceable, perfected security interest in and Lien on (with the priority required under the Loan Documents) any Property as collateral for the Secured Obligations, and all UCC or other financing statements (including fixture filings and transmitting utility filings, as applicable) or instruments of perfection required by this Agreement, the Security Agreement, the Canadian Deed of Hypothec, or any other such security document or pledge agreement to be filed or registered with respect to the security interest in and Lien on any Property created pursuant to the Security Agreement, the Canadian Deed of Hypothec and any other document or instrument utilized to pledge any Property as collateral for the Secured Obligations.

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

“SOFR-Based Rate” means SOFR, Compounded SOFR or Term SOFR.

“SPC” has the meaning set forth in Section 10.04(h).

“Specified Disposition” means each of the Digital AZ Disposition, the Digital GA Disposition, the Houston Disposition and the iWeb Disposition.

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“Specified Lender Advisors” means (x) Gibson, Dunn & Crutcher LLP, as legal counsel, (y) Rothschild & Co., as financial advisor, and (z) any other financial advisor, auditor, attorney, accountant, appraiser, auditor, business valuation expert, environmental engineer or consultant, turnaround consultant, and other consultants, professionals and experts retained by the Ad Hoc Group of Lenders and/or the Required Lenders, in each case, taken as a whole.

“Statutory Reserves” means, for any day during any Interest Period for any Eurodollar Borrowing, the average maximum rate at which reserves (including any marginal, supplemental or emergency reserves) are required to be maintained, during such Interest Period under regulations issued from time to time (including “Regulation D”) issued by the Board of Governors of the Federal Reserve Bank of the United States (the “Reserve Regulations”) by member banks of the United States Federal Reserve System in New York City with deposits exceeding one billion Dollars against Eurocurrency funding liabilities (currently referred to as “Eurocurrency liabilities” (as such term is used in Regulation D)).  Eurodollar Borrowings shall be deemed to constitute Eurodollar liabilities and to be subject to such reserve requirements without benefit of or credit for proration, exceptions or offsets which may be available from time to time to any Lender under the Reserve Regulations.

“Subordinated Indebtedness” means Indebtedness of any Company that is by its terms subordinated and/or junior in right of payment to all or any portion of the Secured Obligations.

“Subsidiary” means, with respect to any Person (the “parent”) at any date, (i) any Person the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, (ii) any other corporation, limited liability company, association or other business entity of which securities or other ownership interests representing more than 50% of the voting power of all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors thereof are, as of such date, owned, controlled or held by the parent and/or one or more subsidiaries of the parent, (iii) any partnership (a) the sole general partner or the managing general partner of which is the parent and/or one or more subsidiaries of the parent or (b) the only general partners of which are the parent and/or one or more subsidiaries of the parent and (iv) any other Person that is otherwise Controlled by the parent and/or one or more subsidiaries of the parent.  Unless the context requires otherwise, “Subsidiary” refers to a Subsidiary of Borrower.

“Survey” means a survey of any Real Property pursuant to Section 5.11(d) hereof (and all improvements thereon) which is (a) (i) prepared by a surveyor or engineer licensed to perform surveys in the state where such Real Property is located, (ii) dated (or redated) not earlier than six months before the date of delivery thereof unless there shall have occurred within six months before such date of delivery any exterior construction on the site of such Real Property or any easement, right of way or other interest in such Real Property has been granted or become effective through operation of applicable Legal Requirements or otherwise with respect to such Real Property which, in either case, can be depicted on a survey, in which events, as applicable, such survey shall be dated (or redated) after the completion of such construction or if such construction shall not have been completed as of such date of delivery, not earlier than 20 days before such date of delivery, or after the grant or effectiveness of any such easement, right of way or other interest in such Real Property, (iii) certified by the surveyor (in a manner reasonably acceptable to the Required Lenders) to the Administrative Agent, the Collateral Agent and the Title Company, (iv) complying in all respects with the minimum detail requirements of the American Land Title Association as such requirements are in effect on the date of preparation of such survey and (v) sufficient for the Title Company to remove all standard survey exceptions from the title insurance policy (or commitment) relating to such Real Property and issue the endorsements of the type required by Section 4.01 or (b) otherwise reasonably acceptable to the Required Lenders and Collateral Agent.

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“Synthetic Lease” means, as to any Person, (a) any lease (including leases that may be terminated by the lessee at any time) of any Property (i) that is accounted for as an operating lease under GAAP and (ii) in respect of which the lessee retains or obtains ownership of the Property so leased for U.S. federal (or foreign) income tax purposes, other than any such lease under which such Person is the lessor or (b) (i) a synthetic, off-balance sheet or tax retention lease, or (ii) an agreement for the use or possession of Property (including a sale and leaseback transaction), in each case under this clause (b), creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Insolvency Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

“Synthetic Lease Obligations” means, as to any Person, an amount equal to the capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a balance sheet of such Person in accordance with GAAP if such obligations were accounted for as Capital Lease Obligations.

“Synthetic Purchase Agreement” means any swap, derivative or other agreement or combination of agreements pursuant to which any Company is or may become obligated to make (a) any payment in connection with a purchase by any third party from a Person other than a Company of any Equity Interest or Restricted Indebtedness or (b) any payment (other than on account of a permitted purchase by it of any Equity Interest or Restricted Indebtedness) the amount of which is determined by reference to the price or value at any time of any Equity Interest or Restricted Indebtedness.

“Tax Returns” means all returns, statements, filings, attachments and other documents or certifications filed or required to be filed in respect of Taxes.

“Taxes” means any and all present or future taxes, duties, levies, imposts, assessments, fees, deductions, withholdings or other similar charges imposed by a Governmental Authority, including any interest, fines, penalties or additions with respect to any of the foregoing.

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

“Test Period” means, at any time, the four consecutive fiscal quarters of Borrower then last ended (in each case taken as one accounting period) for which financial statements have been or are required to be delivered pursuant to Section 5.01(a) or (b).

“Third Variance Period” means (a) in respect of Actual Operating Disbursement Amounts, three calendar week ending on March 27, 2020, and (b) in respect of Actual Cash Receipts, the period commencing four weeks prior to, and ending on, March 27, 2020 (which shall include one week of Actual Cash Receipts plus three weeks of projected receipts).

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“Title Company” means any title insurance company as shall be retained by Borrower and reasonably acceptable to the Administrative Agent and the Required Lenders.

“Title Policy” has the meaning set forth in Section 4.01.

“Total Net Leverage Ratio” means, at any date of determination, the ratio of (i) Consolidated Indebtedness on such date less Finance Lease Obligations for the Test Period then most recently ended on or prior to such date and less Unrestricted Cash of the Loan Parties to (ii) Consolidated EBITDA for the Test Period then most recently ended less payments made in cash in respect of Finance Leases during the Test Period then most recently ended on or prior to such date.

“Transaction Expenses” means any fees or expenses incurred or paid by the Loan Parties, or any of their Affiliates in connection with the Chapter 11 Cases, the Exit Transactions, this Agreement and the other Loan Documents.

“Transactions” means, collectively, (a) the execution, delivery and performance of the Loan Documents and the initial Credit Events hereunder, (b) the payment of all fees, costs and expenses to be paid on or before the Closing Date owing in connection with the foregoing and (c) the Exit Transactions.

“Type” means, when used in reference to any Loan or Borrowing, a reference to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined on the basis of Adjusted LIBOR Rate or the Alternate Base Rate.

“UCC” means the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.

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

“U.S. Tax Compliance Certificate” has the meaning specified in Section 2.15(f).

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

“Undisclosed Administration” means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or parent company is subject to home jurisdiction supervision if applicable Legal Requirements require that such appointment is not to be publicly disclosed.

“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the actuarial assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

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“United States” and “U.S.” means the United States of America.

“Unrestricted Cash” means unrestricted cash and Cash Equivalents owned by Borrower and its Subsidiaries.

“Variance Period” means, as applicable, each of the First Variance Period, Second Variance Period, Third Variance Period and, thereafter, each Rolling Four Week Variances Period ending on the Friday of each calendar week ending thereafter.

“Voting Stock” means, with respect to any Person, any class or classes of Equity Interests pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the Board of Directors of such Person.

“Wholly Owned Subsidiary” means, with respect to any Person, (a) any corporation 100% of whose capital stock (other than directors’ qualifying shares to the extent required under applicable Legal Requirements) is at the time owned by such Person and/or one or more Wholly Owned Subsidiaries of such Person and (b) any partnership, association, joint venture, limited liability company or other entity in which such Person and/or one or more Wholly Owned Subsidiaries of such Person have a 100% Equity Interest (other than directors’ qualifying shares to the extent required under applicable Legal Requirements) at such time.

“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.

“Yield Differential” means, with respect to any Loans made pursuant to Section 2.17, (i) the Effective Yield applicable to such Loans, minus (ii) the Effective Yield applicable to the Loans, minus (iii) 50 basis points.

Section 1.02        Classification of Loans and Borrowings.  For purposes of this Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan”).  Borrowings also may be classified and referred to Type (e.g., a “Eurodollar Borrowing”).

Section 1.03       Terms Generally.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The phrase “Material Adverse Effect” shall be deemed to be followed by the phrase “, individually or in the aggregate”.  The words “asset” and “property” shall be construed to have the same meaning and effect.  The word “will” shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise (a) any definition of or reference to any Loan Document, agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth in any Loan Document), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, unless otherwise indicated and (e) any reference to any law or regulation shall (i) include all statutory and regulatory provisions consolidating, amending, replacing or interpreting or supplementing such law or regulation, and (ii) unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time.  This Section 1.03 shall apply, mutatis mutandis, to all Loan Documents.  Each reference herein to documents, agreements or other matters being “satisfactory,” “acceptable,” “reasonably satisfactory” or “reasonably acceptable” (or any expression of similar import) to the Administrative Agent and any term or provision contained herein to be made in the Administrative Agent’s “discretion” or “sole discretion” (or any expression of similar import), such determination may be made by the Administrative Agent at the written direction of the Required Lenders.

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Section 1.04       Accounting Terms; GAAP.  Except as otherwise expressly provided herein, all financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with and all terms of an accounting or financial nature shall be construed and interpreted in accordance with GAAP as in effect from time to time, subject to applicable “fresh-start” accounting principles (or similar treatments).  If at any time any change in GAAP would affect the computation of any financial ratio set forth in any Loan Document or any financial definition of any other provision of any Loan Document, subject to applicable “fresh-start” accounting principles (or similar treatments), and Borrower or the Required Lenders shall so request, the Administrative Agent and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to approval by the Required Lenders and Borrower); provided that, until so amended, such ratio or requirement shall continue to be computed in accordance with GAAP before such change, and Borrower shall provide to the Administrative Agent and the Lenders within five days after delivery of each certificate or financial report required hereunder that is affected thereby a written statement of a Financial Officer of Borrower setting forth in reasonable detail the differences that would have resulted if such financial statements had been prepared without giving effect to such change.  Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of Borrower or any Subsidiary at “fair value”, as defined therein, (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof and (iii) without giving effect to any valuation of Indebtedness below its full stated principal amount as a result of application of Financial Accounting Standards Board Accounting Standards Update No. 2015-03, it being agreed that such Indebtedness shall at all times be valued at the full stated principal amount thereof.  Notwithstanding anything to the contrary in this Agreement or otherwise, (1) all liabilities under or in respect of any lease, whether now outstanding or any time entered into, incurred (including as a result of a refinancing or an acquisition otherwise permitted by this Agreement), amended or otherwise modified, that was treated (or, in the case of a refinancing, the original lease on the applicable asset was treated) as rental and lease expense on the Closing Date shall not constitute a capital lease obligation or Indebtedness for any purpose under the Loan Documents, and (2) all liabilities under or in respect of any lease that was entered into or incurred (including as a result of a refinancing or an acquisition otherwise permitted by this Agreement) after the Closing Date, is not a Synthetic Lease, and, after giving effect to any amendment or other modification thereto, would have been treated as rental and lease expense and not as a capital lease obligation under GAAP as in effect on the Closing Date, shall not constitute a capital lease obligation or Indebtedness for any purpose under the Loan Documents.

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Without limiting the foregoing, if at any time the SEC permits or requires United States reporting companies to use IFRS in lieu of GAAP for reporting purposes, Borrower may notify the Administrative Agent that it has elected to so use IFRS in lieu of GAAP and, upon any such notice, references herein to GAAP shall thereafter be construed to mean IFRS as in effect from time to time; provided that, to the extent that such election would affect any financial ratio set forth in this Agreement or any requirement set forth in Section 5.01, (i) Borrower shall provide to the Administrative Agent financial statements and other documents reasonably requested by the Administrative Agent or any Lender setting forth a reconciliation with respect to such ratio or requirement made before and after giving effect to such election and (ii) if Borrower, the Administrative Agent or the Required Lenders shall so request, the Administrative Agent, the Required Lenders and Borrower shall negotiate in good faith to amend such ratio to preserve the original intent thereof in light of such change.

Section 1.05        Effectuation of Exit Transactions.  All references herein to Borrower and its Subsidiaries shall be deemed to be references to such Persons, and all the representations and warranties of Borrower and the other Loan Parties contained in this Agreement and the other Loan Documents shall be deemed made, in each case, after giving effect to the Exit Transactions to occur on the Closing Date, unless the context otherwise require.

Section 1.06        Resolution of Drafting Ambiguities.  Each Loan Party acknowledges and agrees that it was represented by counsel in connection with the execution and delivery of the Loan Documents to which it is a party, that it and its counsel reviewed and participated in the preparation and negotiation hereof or thereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation hereof or thereof.

Section 1.07        Division.  For all purposes under the Loan Documents, in connection with any division or plan of division under the Delaware Limited Liability Company Act (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person that is a limited liability company becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.

Section 1.08        Rates.  The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to any of the rates referred to in the definitions of “LIBOR Rate”, “Adjusted LIBOR Rate”, “Base Rate”, “Alternate Base Rate” or “Benchmark Replacement” or any components of any rate thereof, or with any comparable or successor rate for any thereto, or replacement rate for any therefor.

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Section 1.09       Interpretation Clause (Québec).  For purposes of any Collateral located in the Province of Québec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (a) “personal property” shall be deemed to include “movable property”, (b) “real property” shall be deemed to include “immovable property”, (c) “tangible property” shall be deemed to include “corporeal property”, (d) “intangible property” shall be deemed to include “incorporeal property”, (e) “security interest”, “mortgage” and “lien” shall be deemed to include a “hypothec”, “prior claim” and a “resolutory clause”, (f) all references to filing, registering or recording under the UCC (or analogous filing in the jurisdiction of the applicable Loan Party) shall be deemed to include publication under the Civil Code of Québec, (g) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to an “opposable” or “set up” Liens as against third parties, (h) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (i) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall be deemed to include a “mandatary”, (k) “construction liens” shall be deemed to include “legal hypothecs”, (l) “joint and several” shall be deemed to include “solidary”, (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (n) “beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary”, (o) “easement” shall be deemed to include “servitude”, (p) “survey” shall be deemed to include “certificate of location and plan”, (q) “fee simple title” shall be deemed to include “absolute ownership” and (r) “foreclosure” shall be deemed to include the “exercise of a hypothecary right”. The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only (except if another language is required under any applicable law) and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only. Les parties aux présentes confirment leur volonté que la présente convention ainsi que tous autres documents se rattachant aux transactions visées par les présentes soient rédigés en anglais seulement (à moins que le droit applicable exige autrement) et que tous autres documents visés ou s’y rattachant, y compris des avis, puissent être rédigés aussi en anglais seulement.

ARTICLE II.

THE CREDITS

Section 2.01        Commitments.  Subject to the terms and conditions and relying upon the representations and warranties herein set forth, to give effect to the conversion of, and to refinance and reevidence, the DIP Roll Up Loans and the DIP New Money Loans (each as defined in the DIP Credit Agreement) owing to each Lender, Borrower agrees to issue hereunder to each Lender, and each Lender severally agrees to make hereunder and shall be deemed to have made hereunder to Borrower, on the Closing Date, in a single term loan borrowing denominated in Dollars in a principal amount equal to such Lender’s Commitment on the Closing Date, and the DIP Roll Up Loans and the DIP New Money Loans (each as defined in the DIP Credit Agreement) owing to the Lenders under the DIP Credit Agreement shall be substituted with and exchanged for (and reevidenced and refinanced by) such Loans hereunder.  The Loans deemed made or issued pursuant this Section 2.01 shall be deemed made without any actual funding.  Upon the effectiveness of this Agreement, all Commitments of the Lenders shall be deemed fully-funded and such Commitments shall be deemed to be reduced to $0 and interest shall begin to accrue on the full amount thereof as of such date.  As of the Closing Date, all Loans shall be Eurodollar Loans with an Interest Period of one-month which initial one-month period shall be deemed ended as of the last day of the Interest Period (as defined in the DIP Credit Agreement) in effect as of the date hereof with respect to the Loans (as defined in the DIP Credit Agreement) under the DIP Credit Agreement.  Amounts paid or prepaid in respect of Loans may not be reborrowed.

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Section 2.02        [Reserved].

Section 2.03        [Reserved].

Section 2.04        Evidence of Debt; Repayment of Loans.

(a)          Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender, the principal amount of each Loan of such Lender on the Maturity Date, and to the extent not previously irrevocably paid in full in cash, all Loans and Obligations shall be due and payable on the Maturity Date. All amounts borrowed and repaid hereunder shall not be reborrowed.

(b)          Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

(c)          The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder made hereunder and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

(d)        The entries made in the accounts maintained pursuant to Sections 2.04(b) and (c) shall be conclusive, absent manifest error, evidence of the existence and amounts of the obligations therein recorded; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of Borrower and the other Loan Parties to pay, and perform, the Obligations in accordance with the Loan Documents.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such entries, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

(e)         Any Lender by written notice to Borrower (with a copy to the Administrative Agent) may request that Loans made by it be evidenced by a promissory note.  In such event, Borrower shall promptly (and, in all events, within five (5) Business Days of receipt), execute and deliver to such Lender, a promissory note payable to such Lender and its registered assigns in the form of Exhibit I, as the case may be.  Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 10.04) be represented by one or more promissory notes in such form payable to the Lender and its registered assigns.

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Section 2.05        Fees.

(a)          Administrative Agent Fees.  Borrower agrees to pay to the Administrative Agent and the Collateral Agent, for its own account, the administrative fees set forth in the Fee Letter and such other fees payable in the amounts and at the times separately agreed upon between Borrower and the Administrative Agent (the “Administrative Agent Fees”).

(b)          Payment of Fees.  All Fees shall be paid on the dates due, in immediately available funds in Dollars, to the Administrative Agent for distribution, if and as appropriate, among the Lenders.  Once paid, none of the Fees that are required to be paid hereunder shall be refundable under any circumstances.

Section 2.06        Interest on Loans.

(a)          Subject to the provisions of Section 2.06(c), the Loans comprising each ABR Borrowing shall bear interest at a rate per annum equal to the Alternate Base Rate determined for such day, plus the Applicable Margin.

(b)         Subject to the provisions of Section 2.06(c), the Loans comprising each Eurodollar Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBOR Rate in effect from time to time for Eurodollar Borrowings for the Interest Period in effect for such Borrowing plus the Applicable Margin.

(c)          Notwithstanding the foregoing, at any time while an Event of Default has occurred and is continuing, the overdue principal amount of any Loans and, to the extent permitted by applicable law, all overdue interest in respect of each Loan, and all overdue fees or other overdue amounts owed in respect of the Obligations shall be payable upon demand and shall bear interest, after as well as before judgment, at a per annum rate equal to (i) in the case of principal of or interest on any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided in Sections 2.06(a) and (b), or (ii) in the case of any other Obligation, 2.00% plus the rate applicable to ABR Loans as provided in Section 2.06(a) (in either case, the “Default Rate”).

(d)         Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to Section 2.06(c) (including interest on past due interest) and all interest accrued but unpaid on or after the Maturity Date, shall be payable on demand, (ii) in the event of any repayment or prepayment of any, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan before the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

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(e)         All interest hereunder shall be computed on the basis of a year of three-hundred sixty (360) days, except that interest computed by reference to the Alternate Base Rate shall be computed on the basis of a year of three-hundred sixty five (365) days (or three-hundred and sixty six (366) days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first (1st) day but excluding the last day); provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.14, bear interest for one (1) day.  The applicable Alternate Base Rate or Adjusted LIBOR Rate shall be determined by the Administrative Agent in accordance with the provisions of this Agreement and such determination shall be conclusive and binding absent manifest error.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any Insolvency Proceeding.

(f)           Accrued and unpaid interest on the Loan shall be due and payable in cash in arrears on the dates set forth in this Section 2.06.

(g)          For the purposes of the Interest Act (Canada) and disclosure thereunder, whenever any interest or any fee to be paid under any Loan Document is to be calculated on the basis of a 360-day or 365-day year, the yearly rate of interest to which the rate used in such calculation is equivalent is the rate so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 360 or 365, as applicable.  The rates of interest under this Agreement are nominal rates, and not effective rates or yields.  The principle of deemed reinvestment of interest does not apply to any interest calculation under this Agreement. Any provision of this Agreement that would oblige a Canadian Loan Party to pay any fine, penalty or rate of interest on any arrears of principal or interest secured by a mortgage on real property or hypothec on immovables that has the effect of increasing the charge on arrears beyond the rate of interest payable on principal money not in arrears shall not apply to such Canadian Loan Party, which shall be required to pay interest on money in arrears at the same rate of interest payable on principal money not in arrears.  If any provision of this Agreement would oblige a Canadian Loan Party to make any payment of interest or other amount payable to any Secured Party in an amount or calculated at a rate which would be prohibited by applicable law or would result in a receipt by that Secured Party of “interest” at a “criminal rate” (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by that Secured Party of “interest” at a “criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows: (A) first, by reducing the amount or rate of interest required to be paid to the affected Secured Party; and (B) thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid to the affected Lender which would constitute interest for purposes of section 347 of the Criminal Code (Canada).

Section 2.07        Termination of Commitments. The Commitments shall automatically terminate upon the deemed making of the Loans in accordance with the provisions of Section 2.01.

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Section 2.08        Interest Elections.

(a)          Each Borrowing initially shall be of the Type specified in the applicable borrowing request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such borrowing request.  Thereafter, Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.08.  Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.  Notwithstanding anything to the contrary Borrower shall not be entitled to request any conversion or continuation that, if made, would result in more than five (5) Eurodollar Borrowings outstanding hereunder at any one time.

(b)         To make an election pursuant to this Section 2.08, Borrower shall deliver, by hand delivery or facsimile (or by other electronic transmission), a duly completed and executed Interest Election Request to the Administrative Agent, (i) in the case of a Eurodollar Borrowing not later than 1:00 p.m., New York City time, two (2) Business Days before the date of the proposed Borrowing and (ii) in the case of an ABR Borrowing, not later than 10:00 a.m., New York City time, on the date of the proposed Borrowing.  Each Interest Election Request shall be irrevocable.

(c)          Each Interest Election Request shall specify the following information:

(i)          the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, or if outstanding Borrowings are being combined, allocation to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

(ii)          the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii)         whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and

(iv)        if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.  If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then Borrower shall be deemed to have selected an Interest Period of one month’s duration.

(d)          Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

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(e)         If an Interest Election Request with respect to a Eurodollar Borrowing is not timely delivered before the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to a Eurodollar Borrowing with an Interest Period of one month.  Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing, the Administrative Agent or the Required Lenders may require, by notice to Borrower, that (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

Section 2.09        Reserved.

Section 2.10        Optional and Mandatory Prepayments of Loans.

(a)          Optional Prepayments.  Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, subject to the requirements of this Section 2.10; provided that each partial prepayment shall be in an amount that is an integral multiple of $250,000 and not less than $500,000.

(b)          Asset Sales.  Not later than three (3) Business Days following the receipt of any Net Cash Proceeds of any Asset Sale by any Company, Borrower shall apply an amount equal to 100% of such Net Cash Proceeds to make prepayments in accordance with Section 2.10(g); provided, that up to $10,000,000 of such Net Cash Proceeds in respect of the Houston Disposition may be retained by Borrower or its Subsidiaries and used for general corporate purposes in accordance with the Approved Budget approved by the Required Lenders (with written notice of such approval provided to the Administrative Agent).

(c)         Debt Issuance, Preferred Stock Issuance.  Not later than one (1) Business Day following the receipt of any Net Cash Proceeds of any Debt Issuance by any Company or of any Preferred Stock Issuance by Borrower of Disqualified Capital Stock, Borrower shall make prepayments in accordance with Section 2.10(g) in an aggregate principal amount equal to 100% of such Net Cash Proceeds.

(d)        Casualty Events.  Not later than five (5) Business Days following the receipt of any Net Cash Proceeds from a Casualty Event by any Company, Borrower shall apply an amount equal to 100% of such Net Cash Proceeds to make prepayments in accordance with Section 2.10(g); provided that: (i) so long as no Event of Default shall then exist or would arise immediately therefrom, such proceeds shall not be required to be so applied on such date to the extent that (A) in the event such Net Cash Proceeds shall not exceed $2,500,000 per Casualty Event or $5,000,000 in Net Cash Proceeds in any fiscal year of Borrower, Borrower shall have delivered an Officers’ Certificate to the Administrative Agent on or before such date stating that such proceeds are reasonably expected to be used, or (B) in the event that such Net Cash Proceeds equals or exceeds $2,500,000 per Casualty Event or $5,000,000 in Net Cash Proceeds in any fiscal year of Borrower, Borrower has elected by written notice to Administrative Agent on or before such date to require such proceeds to be used, in each case, to repair, replace or restore any Property in respect of which such Net Cash Proceeds were paid or to reinvest in fixed or capital assets of any Loan Party, no later than 365 days following the date of receipt of such proceeds (which Officers’ Certificate shall set forth the estimates of the proceeds to be so expended).

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(e)         Excess Cash Flow.  No later than the earlier of (i) 90 days after the end of each Excess Cash Flow Period and (ii) the date on which the financial statements with respect to such fiscal year in which such Excess Cash Flow Period occurs are delivered pursuant to Section 5.01(a), Borrower shall make prepayments in accordance with Section 2.10(g) in an aggregate principal amount equal to (A) (x) 75% of Excess Cash Flow for the Excess Cash Flow Period then ended if the Total Net Leverage Ratio at the end of such period is greater than or equal to 3:0:1.0 and (y) 50% of Excess Cash Flow for the Excess Cash Flow Period then ended if the Total Net Leverage Ratio at the end of such period is less than 3.0:1.0 minus (B) (x) the aggregate principal amount of optional prepayments of Loans pursuant to Section 2.10(a) made during such Excess Cash Flow Period or, at Borrower’s option, after such Excess Cash Flow Period and prior to the date such Excess Cash Flow payment is required to be made under this Section 2.10(e), in each case, to the extent such prepayment (1) does not occur in connection with a refinancing of all or a portion of such Loans and (2) is made with Internally Generated Funds, (y) if immediately after giving effect to the prepayment required under this clause (e), Borrower and its Subsidiaries would not have Unrestricted Cash on the balance sheet in an aggregate amount of at least $15,000,000, an amount not to exceed the amount necessary (if any) to cause Borrower and its Subsidiaries to have Unrestricted Cash on the balance sheet in an aggregate amount of $15,000,000, after giving pro forma effect to the prepayment required under this clause (e) and (z) amounts retained in the good faith judgement of Borrower to fund growth Capital Expenditures, provided, however, any amounts pursuant to this clause (y) that are not expended by Borrower or its Subsidiaries by June 30 of the calendar year immediately following the end of such Excess Cash Flow Period shall constitute Excess Cash Flow for such Excess Cash Flow Period.

(f)          Foreign Subsidiaries.  Notwithstanding any other provisions of this Section 2.10, mandatory prepayments as a result of Section 2.10(b) in respect of a Foreign Subsidiary (i) may be retained by the applicable Foreign Subsidiary to the extent the making of any such mandatory prepayment from the Net Cash Proceeds of any Asset Sale of any property or assets referred to in Section 2.10(b) received by any Foreign Subsidiary would give rise to a materially adverse tax consequence as reasonably determined in good faith by Borrower in consultation with the Administrative Agent and the Required Lenders (taking into account any foreign tax credit or benefit received in connection with such repatriation and after Borrower and the applicable Foreign Subsidiary have used commercially reasonable efforts to mitigate such materially adverse tax consequence in order to make such prepayments) and may be retained by the applicable Foreign Subsidiary so long as such material adverse tax consequence continues to exist; provided that the aggregate amount of mandatory prepayments that have not been applied to the prepayment of the Loans pursuant to this subclause (f) shall not exceed $10,000,000 during the life of this Agreement; provided further that such Net Cash Proceeds of any such Asset Sale of any property or assets referred to in Section 2.10(b) shall be applied to prepay any Indebtedness of a Foreign Subsidiary permitted to be prepaid by this Agreement or reinvested in the business of any Company as permitted to be reinvested by this Agreement; provided further that if an Event of Default is then continuing, no prepayment of any such Indebtedness (other than any prepayment required by the terms of such Indebtedness) or reinvestments shall be permitted, and (ii) may be retained if prohibited under applicable local law (as reasonably determined by Borrower); provided that such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (Borrower hereby agreeing to cause the applicable Foreign Subsidiary to use commercially reasonable efforts to take such actions required by the applicable local law to permit such repatriation), and once such repatriation is permitted under the applicable local law, unless such prepayment amount may be retained under foregoing clause (i), such repatriation shall be promptly effected.

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(g)          Prepayments, if any, required or optionally made pursuant to this Section 2.10 shall be applied to repay the principal amount of the Loans on a pro rata basis, plus any interest accrued and unpaid on such Loans, on a pro rata basis, as applicable plus any interest accrued and unpaid on such Loans.

Section 2.11         Alternate Rate of Interest.

(a)          If before the commencement of any Interest Period for a Eurodollar Borrowing:

(i)          the Administrative Agent determines (which determination shall be final and conclusive absent manifest error) either (i) that Dollar deposits in the principal amounts of the Loans comprising the applicable Borrowing are not generally available in the London interbank market or (ii) that adequate and reasonable means (including by means of an Interpolated Rate) do not exist for ascertaining the Adjusted LIBOR Rate for such Interest Period; provided, in each case, that no Benchmark Transition Event shall have occurred at such time; or

(ii)        the Administrative Agent is advised in writing by the Required Lenders that the Adjusted LIBOR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;

then the Administrative Agent shall give written notice thereof to Borrower and the Lenders as promptly as practicable thereafter and, until the Administrative Agent notifies Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, each Eurodollar Borrowing shall be converted into an ABR Loan on the last day of the then current Interest Period applicable thereto.

(b)         Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent, the Required Lenders and Borrower may amend this Agreement to replace the LIBOR Rate with a Benchmark Replacement.  Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and Borrower, so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendment from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Lenders shall be entitled to object only to the Benchmark Replacement Adjustment contained therein.  Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment.  No replacement of LIBOR Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date.

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(c)          In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

(d)          The Administrative Agent will promptly notify Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable and its related Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period.  Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.11, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.11.

(e)          Upon Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Loans shall cease to be Eurodollar Loans and (ii) all Loans shall convert to, and continue as, ABR Loans.

Section 2.12         Increased Costs; Change in Legality.

(a)          If any Change in Law shall:

(i)          impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge, liquidity or similar requirement against Property of, deposits with or for the account of, or credit extended by or participated in by, any Lender (except any such reserve requirement reflected in the Adjusted LIBOR Rate);

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(ii)          impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender; or

(iii)        subjects the Administrative Agent or any Lender to any Taxes (other than (A) Indemnified Taxes and Other Taxes indemnified pursuant to Section 2.15 and (B) Excluded Taxes) on its Loans, principal, letters of credit, Commitments, or other Obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

and the result of any of the foregoing shall be to increase the cost to the Administrative Agent or such Lender, as applicable, by an amount deemed by such recipient to be material of making, converting to or from, continuing or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan)or to reduce the amount of any sum received or receivable by the Administrative Agent or such Lender hereunder by an amount deemed by the Administrative Agent or such Lender to be material (whether of principal, interest or otherwise), then Borrower will pay to the Administrative Agent or such Lender, as the case may be, such additional amount or amounts as will compensate the Administrative Agent or such Lender, as the case may be, for such additional costs incurred or reduction suffered.  The protection of this Section 2.12 shall be available to the Administrative Agent and each Lender regardless of any possible contention of the invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.

(b)         If any Lender determines (in good faith, but in its sole absolute discretion) that any Change in Law regarding Capital Requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company by any amount deemed by such Lender to be material, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy or liquidity), then from time to time Borrower will pay to such Lender, as the case may be, such additional amount or amounts as will compensate such Lender or such Lender’s holding company, for any such reduction suffered.

(c)          A certificate of a Lender (or the Administrative Agent, to the extent applicable) setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 2.12(a) or (b) shall be delivered to Borrower (with a copy to the Administrative Agent) and shall be conclusive and binding absent manifest error; provided, however, that such certificate need not include any confidential or price sensitive information or any information that is prohibited by applicable Legal Requirements from being disclosed.  Borrower shall pay such Lender, as the case may be, the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.

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(d)          Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.12 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that Borrower shall not be required to compensate a Lender for any increased costs or reductions incurred more than 180 days before the date that such Lender, as the case may be, notifies Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180‑day period referred to above shall be extended to indicate the period of retroactive effect thereof.

(e)         Notwithstanding any other provision of this Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any Eurodollar Loan, then, by written notice to Borrower and to the Administrative Agent:

(i)          such Lender may declare that Eurodollar Loans will not thereafter (for the duration of such unlawfulness (as determined in good faith by such Lender)) be made by such Lender hereunder (or be continued for additional Interest Periods and ABR Loans will not thereafter (for such duration) be converted into Eurodollar Loans), whereupon any request for a Eurodollar Loan (or to convert an ABR Loan to a Eurodollar Loan or to continue a Eurodollar Loan for an additional Interest Period) shall, as to such Lender only, be deemed a request for an ABR Loan (or a request to continue an ABR Loan as such for an additional Interest Period or to convert a Eurodollar Loan into an ABR Loan, as the case may be), unless such declaration shall be subsequently withdrawn by such Lender by written notice to Borrower and to the Administrative Agent; and

(ii)         such Lender may require that all outstanding Eurodollar Loans made by it be converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically converted to ABR Loans as of the effective date of such notice as provided in Section 2.12(f).

In the event any Lender shall exercise its rights under clause (i) or (ii) above, all payments and prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion of, such Eurodollar Loans.

(f)          For purposes of Section 2.12(e), a notice to Borrower by any Lender shall be effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest Period then applicable to such Eurodollar Loan; in all other cases such notice shall be effective on the date of receipt by Borrower.

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Section 2.13        Breakage Payments.  In the event of (a) the payment or prepayment, whether optional or mandatory, of any principal of any Eurodollar Loan earlier than the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan earlier than the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Loan on the date specified in any notice delivered pursuant hereto or (d) the assignment of any Eurodollar Loan earlier than the last day of the Interest Period applicable thereto as a result of a request by Borrower pursuant to Section 2.16, then, in any such event, Borrower shall compensate each Lender for the loss, cost and expense attributable to such event and any liquidation or deployment of deposits required by such Lender to make, maintain or convert to such Loan.  In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBOR Rate (together with any interest payable at the Default Rate, if then applicable, but excluding loss of margin or anticipated profit) that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for Dollar deposits of a comparable amount and period from other banks in the Eurodollar market, whether or not such Loan was in fact so funded.  A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.13 shall be delivered to Borrower (with a copy to the Administrative Agent) and shall be conclusive and binding absent manifest error.  Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof; provided, however, that such certificate need not include any confidential or price sensitive information or any information that is prohibited by applicable Legal Requirements from being disclosed.

Section 2.14         Payments Generally; Pro Rata Treatment; Sharing of Setoffs.

(a)         Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, or fees, or of amounts payable under Section 2.10(g), 2.12, 2.13 or 2.15, or otherwise) on or before the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, before 1:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff, deduction or counterclaim.  Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made to the Administrative Agent’s Account, except that payments pursuant to Sections 2.12, 2.13, 2.15 and 10.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein.  The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof.  If any payment under any Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.  All payments under each Loan Document shall be made in Dollars.

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(b)          If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees and other amounts then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties, and (iii) third, towards the payment of all other Obligations then due hereunder, ratably among the parties entitled thereto in accordance with the amount of such amounts then due to such parties.

(c)          If any Lender shall, by exercising any right of setoff or counterclaim (including pursuant to Section 10.08) or otherwise (including by exercise of its rights under the Security Documents), obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this Section 2.14(c) shall not be construed to apply to any payment made by or on behalf of Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any Eligible Assignee or participant, other than to any Company or any Affiliates thereof (as to which the provisions of this Section 2.14(c) shall apply).  Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Legal Requirements, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.  If under applicable Insolvency Law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this Section 2.14(c) applies, such Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of such Secured Party under this Section 2.14(c) to share in the benefits of the recovery of such secured claim.

(d)        Unless the Administrative Agent shall have received written notice from Borrower before the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that Borrower will not make such payment, the Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due.  In such event, if Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules or practices on interbank compensation.

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(e)          If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.14(d) or 10.03(e), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Section 2.15        Taxes.

(a)          Any and all payments by or on account of any obligation of the Loan Parties hereunder or under any other Loan Document shall be made without deduction or withholding for any and all Taxes, except as required by applicable Legal Requirements.  If applicable Legal Requirements (as determined in the good faith discretion of an applicable Loan Party or the Administrative Agent) require the deduction or withholding of any Tax from any such payment by such Loan Party or the Administrative Agent, then (i) if the Tax in question is an Indemnified Tax or Other Tax the sum payable by the applicable Loan Party shall be increased as necessary so that after making all required deductions (including deductions or withholdings applicable to additional sums payable under this Section 2.15) the Administrative Agent, any Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions, reductions or withholdings been made, (ii) the relevant Loan Party, if applicable, shall make such deductions, reductions or withholdings and (iii) the relevant Loan Party, if applicable, shall timely pay the full amount deducted, reduced or withheld to the relevant Governmental Authority in accordance with applicable Legal Requirements.

(b)          In addition, the Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable Legal Requirements, or at the option of the Administrative Agent timely reimburse it for payment of, any Other Taxes.

(c)        The Loan Parties shall jointly and severally indemnify the Administrative Agent and each Lender, within ten (10) Business Days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid or payable by the Administrative Agent or such Lender, as the case may be, on or with respect to any payment by or on account of any obligation of any Loan Party hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.15) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to Borrower by a Lender(in each case, with a copy delivered concurrently to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender shall be conclusive absent manifest error.

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(d)         Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that a Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.04(e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).

(e)         As soon as practicable after any payment of Taxes and in any event within twenty (20) Business Days following any such payment being due, by any Loan Party to a Governmental Authority, Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the Tax Return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

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(f)          Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments under any Loan Document shall deliver to Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable Legal Requirements and at the time or times reasonably requested by Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Legal Requirements or reasonably requested by Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, at the time or times prescribed by applicable Legal Requirements and at the time or times reasonably requested by Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower or the Administrative Agent as will enable Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution, and submission of such documentation shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.  Without limiting the generality of the foregoing, (i) each Foreign Lender shall, to the extent it is legally entitled to do so, furnish to Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or the Administrative Agent), whichever of the following is applicable:  (A) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable, (or any successor forms) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable, (or any successor forms) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty, (B) two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8ECI (or any successor forms), (C) in the case of a Foreign Lender claiming the benefits of the exemption from U.S. federal withholding tax under Section 871(h) or Section 881(c) of the Code, (x) two accurate and originally executed certificates substantially in the form of Exhibit L-1 (a “U.S. Tax Compliance Certificate”) certifying that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, is not a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (y) two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable, (or any successor forms), or (D) to the extent a Foreign Lender is not the beneficial owner, two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8IMY (or any successor forms), accompanied by two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8ECI, U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, U.S. Tax Compliance Certificates substantially in the form of Exhibit L-2 or Exhibit L-3, U.S. Internal Revenue Service Forms W-9, and/or other certification documents (or any successor forms), as applicable, from each beneficial owner that would be required under this Section 2.15(f) if such beneficial owner were a lender; provided that if the Foreign Lender is a partnership for U.S. federal income tax purposes (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner, and (E) two accurate and complete originally executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax together with such supplementary documentation as may be prescribed by applicable law to permit Borrower or the Administrative Agent to determine the withholding or deduction required to be made and (ii) any Lender that is not a Foreign Lender shall on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or the Administrative Agent) furnish to Borrower and the Administrative Agent two accurate and complete originally executed U.S. Internal Revenue Service Forms W-9 (or any successor forms) certifying that such Lender is exempt from U.S. federal backup withholding Tax.  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 Borrower and the Administrative Agent in writing of its legal inability to do so.

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(g)          If a payment made to a Lender under any Loan Document may be subject to U.S. federal withholding tax under FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by Borrower or the Administrative Agent, such documentation prescribed by applicable Legal Requirements and such additional documentation reasonably requested by Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this Section 2.15(g), the term “FATCA” shall include any amendments to FATCA after the date hereof.

(h)          If the Administrative Agent or a Lender (or an assignee) determines in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by Borrower (or with respect to which Borrower’s payment of additional amounts pursuant to this Section 2.15), it shall pay over an amount equal to such refund to Borrower within a reasonable period and in any event within twenty (20) Business Days of such determination, net of all out-of-pocket expenses (including Taxes) of the Administrative Agent or such Lender (or assignee) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, however, that if the Administrative Agent or such Lender (or assignee) is required to repay all or a portion of such refund to the relevant Governmental Authority, Borrower, upon the request of the Administrative Agent or such Lender (or assignee), shall repay the amount paid over to Borrower that is required to be repaid (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender (or assignee), as applicable, within ten (10) Business Days after receipt of written notice that the Administrative Agent or such Lender (or assignee) is required to repay such refund (or a portion thereof) to such Governmental Authority.  Nothing contained in this Section 2.15(h) shall require the Administrative Agent or any Lender (or assignee) to make available its Tax Returns or any other information which it deems confidential or privileged to Borrower or any other Person.  Notwithstanding anything to the contrary, in no event will the Administrative Agent or any Lender (or assignee) be required to pay any amount to Borrower the payment of which would place the Administrative Agent or such Lender (or assignee) in a less favorable net after-Tax position than the Administrative Agent or such Lender (or assignee) would have been in if the Indemnified Taxes or Other Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld, or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid.

Section 2.16        Mitigation Obligations; Replacement of Lenders.

(a)          Mitigation of Obligations.  If any Lender requests compensation under Sections 2.12(a) or (b), or if Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce materially amounts payable pursuant to Section 2.12(a), 2.12(b) or 2.15, as the case may be, in the future, (ii) would not subject such Lender to any unreimbursed cost or expense, (iii) would not require such Lender to take any action inconsistent with legal or regulatory restrictions, and (iv) would not otherwise be disadvantageous to such Lender, whether from an economic, legal, regulatory or reputational standpoint or otherwise.  Borrower shall pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.  A certificate setting forth such costs and expenses submitted by such Lender to the Administrative Agent shall be conclusive and binding absent manifest error.

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(b)          Replacement of Lenders.  In the event (i) any Lender delivers a certificate requesting compensation pursuant to Section 2.12(a) or (b), (ii) any Lender delivers a notice described in Section 2.12(e), (iii) Borrower is required to pay any additional amount to any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.15, (iv) any Lender fails to consent to any amendment, waiver or other modification of any Loan Document requested by Borrower that requires the consent of 100% of the Lenders or 100% of all affected Lenders and, which, in each case, has been consented to by the Lenders or affected Lenders holding the majority of the aggregate principal amount of Loans outstanding and/or unused commitments applicable thereto, as the case may be, or (v) any Lender or defaults in its obligations to make Loans or other extensions of credit hereunder, Borrower may, at its sole expense and effort (including with respect to the processing and recordation fee referred to in Section 10.04(b)), upon notice to such Lender and the Administrative Agent, require such Lender to transfer and assign, without recourse (in accordance with and subject to the restrictions contained in Section 10.04), all of its interests, rights and obligations under this Agreement to an Eligible Assignee (other than its existing rights to payments pursuant to Section 2.12(a) or (b) or 2.15) which shall assume such assigned obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment); provided that (u) in the case of any such assignment resulting from a claim for compensation under Section 2.12(a) or (b) or payments required to be made pursuant to Section 2.15, such assignment will result in a reduction of such compensation or payment thereafter, (w) except in the case of clause (iv) above if the effect of such amendment, waiver or other modification of the applicable Loan Document would cure any Default or Event of Default then ongoing, no such Default or Event of Default shall have occurred and be continuing, (x) such assignment shall not conflict with any applicable Legal Requirement, (y) Borrower shall have received the prior written consent of the Required Lenders, which consent shall not unreasonably be withheld or delayed, and (z) Borrower or such assignee shall have paid to the affected Lender in immediately available funds an amount equal to the sum of the principal of and interest and any prepayment premium or penalty (if any) accrued to the date of such payment on the outstanding Loans of such Lender affected by such assignment plus all Fees and other amounts owing to or accrued for the account of such Lender hereunder (including any amounts under Sections 2.12 and 2.13); provided further that, if before any such transfer and assignment the circumstances or event that resulted in such Lender’s claim for compensation under Section 2.12(a) or (b) or notice under Section 2.12(e) or the amounts paid pursuant to Section 2.15, as the case may be, cease to cause such Lender to suffer increased costs or reductions in amounts received or receivable or reduction in return on capital, or cease to have the consequences specified in Section 2.12(e), or cease to result in amounts being payable under Section 2.15, as the case may be (including as a result of any action taken by such Lender pursuant to Section 2.16(a)), or if such Lender shall irrevocably waive its right to claim further compensation under Section 2.12(a) or (b) in respect of such circumstances or event or shall irrevocably withdraw its notice under Section 2.12(e) or shall irrevocably waive its right to further payments under Section 2.15 in respect of such circumstances or event or shall consent to the proposed amendment, waiver, consent or other modification, as the case may be, then such Lender shall not thereafter be required to make any such transfer and assignment hereunder.  Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender as assignor, any Assignment and Assumption necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section 2.16(b).

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(c)         Defaulting Lenders.  Anything contained herein to the contrary notwithstanding, in the event that any Lender becomes a Defaulting Lender, then during any Default Period (as defined below) with respect to such Defaulting Lender, such Defaulting Lender shall be deemed not to be a “Lender”, and the amount of such Defaulting Lender’s Commitments and Loans shall be excluded for purposes of voting, and the calculation of voting, on any matters (including the granting of any consents or waivers) with respect to any of the Loan Documents, except that the amount of such Defaulting Lender’s Commitments and Loans shall be included for purposes of voting, and the calculation of voting, on the matters set forth in Section 10.02(b)(i)-(x) and Section 10.02(b)(xi) (including the granting of any consents or waivers).

For purposes of this Agreement, (i) “Funding Default” means, with respect to any Defaulting Lender, the occurrence of any of the events set forth in the definition of “Defaulting Lender,” (ii) “Defaulted Loan” means the Loans of a Defaulting Lender; (iii) “Default Period” means, with respect to any Defaulting Lender, the period commencing on the date of the applicable Funding Default and ending on the earliest of the following dates:  (a) [reserved], (b) with respect to any Funding Default (other than any such Funding Default arising pursuant to clause (e) of the definition of “Defaulting Lender”), the date on which (1) the Default Excess with respect to such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting Lender or by the non-pro rata application of any voluntary or mandatory prepayments of the Loans in accordance with the terms hereof or any combination thereof) and (2) such Defaulting Lender shall have delivered to Borrower and the Administrative Agent a written reaffirmation of its intention to honor its obligations under this Agreement with respect to its Commitment(s), and (c) the date on which Borrower, the Administrative Agent and the Required Lenders waive all Funding Defaults of such Defaulting Lender in writing, and (iv) “Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender’s pro rata percentage of the aggregate outstanding principal amount of Loans of all Lenders (calculated as if all Defaulting Lenders (including such Defaulting Lender) had funded all of their respective Defaulted Loans) over the aggregate outstanding principal amount of Loans of such Defaulting Lender.

No amount of the Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in Section 2.16(c), performance by Borrower of its obligations under this Agreement and the other Loan Documents shall not be excused or otherwise modified, as a result of any Funding Default or the operation of Section 2.16(c).  The rights and remedies against a Defaulting Lender under Section 2.16(c) are in addition to other rights and remedies that Borrower may have against such Defaulting Lender with respect to any Funding Default and that the Administrative Agent or any Lender may have against such Defaulting Lender with respect to any Funding Default.

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Section 2.17        Increases of the Loan.

(a)          Borrower may, not more than five (5) times after the Closing Date, increase, at Borrower’s request to the Administrative Agent, the then effective aggregate principal amount of the Commitments; provided that:

(i)           the cumulative aggregate principal amount of all increases in the Commitments pursuant to this Section 2.17 shall not at any time exceed the Incremental Cap;

(ii)          the proceeds of such increases shall be used for working capital and general corporate purposes of Borrower and its Subsidiaries, including Investments (including acquisitions and Capital Expenditures) permitted hereunder;

(iii)        Borrower shall execute and deliver such agreements, instruments and documents and take such other actions as may be reasonably requested by the Administrative Agent in connection with such increases and at the time of any such proposed increase; no Default or Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such increase and the application of proceeds therefrom;

(iv)       Borrower shall be in compliance, on a pro forma basis, with each of the financial covenants specified in Section 6.10, on the date of such increase and as of the last day of the most recently ended fiscal quarter after giving effect to such increase (assuming, for purposes of Section 6.10, that the maximum Total Net Leverage Ratio permitted in any Test Period pursuant to Section 6.10 is 0.25 to 1.00 below the maximum Total Net Leverage Ratio set forth in Section 6.10 for such Test Period);

(v)          the Incremental Loans shall have a maturity date no earlier than the Maturity Date and shall have a weighted average life to maturity no shorter than the Loans made (or deemed made) on the Closing Date;

(vi)         if the Effective Yield applicable to the Incremental Loans made pursuant to this Section 2.17 exceed the Effective Yield applicable to the Loans made (or deemed made) on the Closing Date by more than 50 basis points, then the interest rates set forth in Section 2.06 shall increase by the Yield Differential; provided that it being understood that any increase to the Effective Yield to any such Loan pursuant to this clause (vii) due to the application of any LIBOR or ABR floors will be effected solely through any increase in such floor; and

(vii)       the terms and conditions with respect to the Incremental Loans that are not consistent with the Loans made (or deemed made) on the Closing Date (except as otherwise set forth in this Section 2.17) shall be reasonably satisfactory to the Administrative Agent.

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(b)          Any request under this Section 2.17 shall be submitted by Borrower in writing to the Administrative Agent (which shall promptly forward copies to the Lenders).  Borrower may also specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Commitment.  No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Commitment or to make any Incremental Loans.  Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Commitments pursuant to this Section 2.17.  No Lender which declines to increase the principal amount of its Commitment may be replaced with respect to its existing Commitment as a result thereof without such Lender’s consent.

(c)          Each Increasing Lender shall as soon as reasonably practicable specify in writing the amount of the proposed increase of the Commitments that it is willing to assume (provided that any Lender not so responding within five (5) Business Days (or such shorter period as may be specified by the Administrative Agent) shall be deemed to have declined such a request).  Borrower may accept some or all of the offered amounts or designate new lenders that are reasonably acceptable to the Administrative Agent as additional Lenders hereunder in accordance with this Section 2.17 (each such new lender being a “New Lender”), which New Lenders may assume all or a portion of the increase in the aggregate principal amount of the applicable Commitments.  The Administrative Agent (acting at the direction of the Required Lenders), in consultation with Borrower, shall have discretion jointly to adjust the allocation of the increased aggregate principal amount of the Commitments among Increasing Lenders and New Lenders.

(d)         Subject to the foregoing, any increase requested by Borrower shall be effective upon (A) delivery to the Administrative Agent of each of the following documents: (i) an originally executed copy of a Joinder Agreement signed by a duly authorized officer of each New Lender; (ii) a notice to the Increasing Lenders and New Lenders, in form and substance reasonably acceptable to the Administrative Agent, signed by a Financial Officer of Borrower; (iii) an Officers’ Certificate of Borrower, in form and substance reasonably acceptable to the Administrative Agent certifying to, among other things, that any increase in the Commitments pursuant to this Section 2.17 and the making of the Loans under this Section 2.17 is not in violation of the Facility; (iv) to the extent requested by any New Lender or Increasing Lender, executed Term Notes issued by Borrower in accordance with Section 2.04(e); (v) an amendment (an “Incremental Loan Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Borrower, each Increasing Lender (if any), each New Lender (if any) and the Administrative Agent; and (vi) any other certificates or documents or legal opinions that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent, and (B) satisfaction on the effective date of the Incremental Loan Amendment of (x) each of the conditions specified in Section 4.02 (it being understood that all references to “the date of such Credit Event” or similar language in Section 4.02 shall be deemed to refer to the effective date of the Incremental Loan Amendment), and (y) such other conditions as the parties thereto shall agree.

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ARTICLE III.

REPRESENTATIONS AND WARRANTIES

Each Loan Party represents and warrants to the Administrative Agent, the Collateral Agent and each of the Lenders (with references in this Article III to the Companies being references thereto after giving effect to the Transactions unless otherwise expressly stated) on the Closing Date and upon each Credit Event thereafter that:

Section 3.01        Organization; Powers; Regulatory Licenses.

(a)         Each Company (i) is duly incorporated or organized and validly existing and is in good standing under the laws of the jurisdiction of its incorporation or organization, (ii) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals (including franchises, ordinances and other agreements granting access to public rights of way, issued or granted to any Company by a state or federal agency or commission or other federal, state or local or foreign regulatory bodies, in each case, regulating competition and telecommunications businesses) (collectively, the “Regulatory Licenses”) to carry on its business as now conducted and as proposed to be conducted and (iii) is qualified, licensed and in good standing (to the extent such concept is applicable in the applicable jurisdiction) to do business in every jurisdiction where such qualification is required, except in such jurisdictions where the failure to so qualify, be licensed or be in good standing could not reasonably be expected to result in a Material Adverse Effect.

(b)          Each Regulatory License is valid and in full force and effect and has not been, or will not have been, suspended, revoked, cancelled, restricted, terminated, not renewed or adversely modified, except to the extent any failure to be valid or in full force and effect or any suspension, revocation, cancellation, restriction, termination, nonrenewal or modification has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  No Regulatory License is subject to (i) any conditions or requirements that have not been imposed generally upon licenses in the same service, unless such conditions or requirements would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or (ii) any pending regulatory proceeding (other than those affecting the communications industry generally) or judicial review before a Governmental Authority, unless such pending regulatory proceedings or judicial review would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  No Loan Party has knowledge of any event, condition or circumstance that would preclude any Regulatory License from being renewed in the ordinary course (to the extent that such Regulatory License is renewable by its terms), except where the failure to be renewed has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

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(c)          The licensee of each Regulatory License is in compliance with each Regulatory License and has fulfilled and performed, or will fulfill or perform, all of its obligations with respect thereto in a timely manner, including with respect to the filing of all reports, notifications and applications required by the Communications Act or the rules, regulations, policies, instructions and orders of the FCC or any PUC, and the payment of all regulatory fees and contributions, except (i) for exemptions, waivers or similar concessions or allowances and (ii) where such failure to be in compliance or to fulfill or perform its obligations or pay such fees or contributions has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(d)          One or more Loan Parties owns, directly or indirectly through one or more Wholly Owned Subsidiaries, all of the Equity Interests in, and Controls, all of the voting power and decision-making authority of, each licensee of the Regulatory Licenses, except for any Regulatory License the termination of which could not reasonably be expected to result in a Material Adverse Effect, and each such licensee is a Subsidiary.

Section 3.02        Authorization; Enforceability.  Subject to the entry of and the terms of the Confirmation Order, the Transactions to be entered into by each Loan Party are within such Loan Party’s organizational powers and have been duly authorized by all necessary corporate or other organizational action on the part of each such Loan Party.  Subject to the entry of and terms of the Confirmation Order, this Agreement has been duly executed and delivered by each Loan Party and constitutes, and each other Loan Document to which any Loan Party is to be a party, when executed and delivered by such Loan Party, will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law.

Section 3.03        No Conflicts; No Default.  Subject to the entry of and terms of the Confirmation Order and except to the extent excused as a result of the Chapter 11 Cases, the Transactions (a) do not require any consent, exemption, authorization or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) filings necessary to perfect or maintain the perfection or priority of the Liens created by the Security Documents and (iii) consents, approvals, exemptions, authorizations, registrations, filings, permits or actions the failure of which to obtain or perform could not reasonably be expected to result in a Material Adverse Effect, (b) will not violate the Organizational Documents of any Company, (c) will not violate or result in a default or require any consent or approval under (x) any indenture, instrument, agreement, or other document binding upon any Company or its property or to which any Company or its property is subject, or give rise to a right thereunder to require any payment to be made by any Company, except for violations, defaults or the creation of such rights that could not reasonably be expected to result in a Material Adverse Effect or (y) any Organizational Document (other than such as have been obtained and are in full force and effect), (d) will not violate any Legal Requirement in any material respect, and (e) will not result in the creation or imposition of any Lien on any property of any Company, except Liens created by the Security Documents and Permitted Liens.  No Default or Event of Default has occurred and is continuing.

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Section 3.04        Financial Statements.  Borrower has heretofore delivered to the Lenders the consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Borrower and its Subsidiaries as of and for the fiscal years ended December 31, 2017, December 31, 2018, and December 31, 2019, audited by and accompanied by (i) in the case of such financial statements for the fiscal year ended December 31, 2017, the opinion of PricewaterhouseCoopers LLP, independent public accountants and (ii) in the case of such financial statements for the fiscal years ended December 31, 2018 and December 31, 2019, the opinion of BDO USA, LLP, independent public accountants.  Such financial statements and all financial statements delivered pursuant to Sections 5.01(a) and (b) have been prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) consistently applied throughout the applicable period covered, respectively, thereby and present fairly in all material respects the financial condition and results of operations and, if applicable, cash flows of the applicable Companies as of the dates and for the periods to which they relate (subject to normal year-end audit adjustments and the absence of footnotes).

Section 3.05        Properties.  Each Company has valid leasehold interests in, all its Property material to its business, free and clear of all Liens and irregularities, deficiencies and defects in title except for Permitted Liens and minor irregularities, deficiencies and defects in title that, individually or in the aggregate, do not, and could not reasonably be expected to, interfere with its ability to conduct its business as currently conducted or to utilize such Property for its intended purpose.  There are no Material Adverse Lease Events where a landlord has exercised remedies as a result of an event of default resulting from any Company’s bankruptcy on or prior to the Closing Date (other than in connection with the Chapter 11 cases).

Section 3.06        Intellectual Property.

(a)         Each Company owns or is licensed to use, free and clear of all Liens (other than Permitted Liens), all patents and patent applications, trademarks, trade names, service marks, copyrights, domain names and applications for registration thereof, and technology, trade secrets, proprietary information, inventions, know-how and processes, in each case necessary for the conduct of its business as currently conducted and proposed to be conducted (the “Intellectual Property”), except for those the failure to own or license which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

(b)          Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, no claim has been asserted or is pending by any Person challenging or restricting the use of any such Intellectual Property or challenging the ownership, validity, registerability or enforceability of any such Intellectual Property, nor does any Loan Party know of any valid basis for any such claim.  The operation of each Company’s business as currently conducted and proposed to be conducted and the use of such Intellectual Property by each Company does not conflict with, infringe, misappropriate, dilute, misuse or otherwise violate the rights of any Person, except for such claims, infringements and violations which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.  Except pursuant to licenses and other user agreements entered into by each Company in the ordinary course of business and as otherwise could not reasonably be expected to result in a Material Adverse Effect, no Company has done anything to authorize or enable any other Person to use any such Intellectual Property.  Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, each Company has taken commercially reasonable actions to protect the secrecy, confidentiality and value of all trade secrets used in such Company’s business.

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(c)          Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect:  (i) to the knowledge of any Loan Party based on reasonable investigations, there is no violation by others of any right of any Company with respect to any Intellectual Property, (ii) to the knowledge of any Loan Party based on reasonable investigations, no Company is infringing upon or misappropriating, diluting, misusing or otherwise violating any copyright, patent, trademark, trade secret or other Intellectual Property right of any other Person, (iii) no Company is in breach of, or in default under, any license of Intellectual Property by any other Person, to such Company, and (iv) no proceedings have been instituted or are pending against any Company or, to the knowledge of any Loan Party, threatened, and no claim against any Company has been received by any Company, alleging any such infringement or misappropriation of the Intellectual Property of any other Person.

(d)          Neither the execution, delivery or performance of this Agreement and the other Loan Documents, nor the consummation of the Transactions and the other transactions contemplated hereby and thereby, will alter, impair or otherwise affect or require the consent, approval or other authorization of any other Person in respect of any right of any Company in any Intellectual Property, except to the extent that such alteration, impairment, effect, consent, approval or other authorization, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

(e)         Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, no Company is subject to any settlement, covenant not to sue or other instrument, agreement or other document, or any outstanding Order.

Section 3.07         Equity Interests and Subsidiaries.

(a)          Schedule 3.07(a) attached hereto sets forth a list of (i) Borrower and each Subsidiary of Borrower and its jurisdiction of incorporation or organization as of the Closing Date and (ii) the number of each class of its Equity Interests authorized, and the number outstanding, on the Closing Date and the number of Equity Interests covered by all outstanding options, warrants, rights of conversion or purchase and similar rights on the Closing Date.  All Equity Interests of each Company are duly and validly issued and are fully paid and non-assessable.  Each Loan Party is the record and beneficial owner of, and has good and marketable title to, the Equity Interests pledged by (or purporting to be pledged by) it under the Security Documents, free of any and all Liens (other than Permitted Liens).  As of the Closing Date, there are no outstanding warrants, options or other rights (including derivatives) to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or Property that is convertible into, or that requires the issuance or sale of, any such Equity Interests of any Subsidiary of Borrower (or any economic or voting interests therein).

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(b)          An accurate organizational chart, showing the ownership structure of Borrower and each Subsidiary as of the Closing Date, is set forth on Schedule 3.07(b).

Section 3.08        Litigation; Compliance with Legal Requirements.  Unless stayed by the Chapter 11 Cases, there are no actions, suits, claims, disputes, proceedings or investigations at law or in equity by or before any Governmental Authority, including the FCC and any PUC, now pending or, to the knowledge of any Loan Party, threatened against or affecting any Company or any business, Property or rights of any Company (a) that purport to affect or involve any Loan Document or any of the Transactions, the ability of any Company to perform its obligations under any Loan Document or the ability of any Company to consummate any of the Transactions or (b) that have resulted in or that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

Section 3.09        Agreements.  No Company is a party to any agreement or instrument or subject to any corporate or other constitutional restriction, or any restriction under its Organizational Documents that has resulted or could reasonably be expected to result in a Material Adverse Effect.  As of the Closing Date, Schedule 3.09 attached hereto accurately and completely lists all Material Agreements to which any Company is a party which are in effect on the date hereof and Borrower has made available for review by the Administrative Agent and the Specified Lender Advisors complete and correct copies of all such Material Agreements, including any amendments, supplements or modifications with respect thereto, and, except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, all such agreements are in full force and effect.

Section 3.10        Federal Reserve Regulations.

(a)          No Company is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing, buying or carrying Margin Stock.

(b)          No part of the proceeds of any Credit Event will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a violation of Regulation U or X of the Board.  The pledge of the Securities Collateral pursuant to the Security Agreement does not violate such regulations.

Section 3.11          Investment Company Act, etc.  No Company is (a) an “investment company” or a company “controlled” by an “investment company,” as defined in, or subject to regulation under, or required to be registered pursuant to, the Investment Company Act of 1940, as amended, or (b) subject to regulation under any Legal Requirement (other than Regulation X) that limits its ability to incur, create, assume or permit to exist Indebtedness under the Loan Documents or grant any Contingent Obligation in respect of such Indebtedness.

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Section 3.12        Use of Proceeds.  Subject to the terms and conditions herein, the use of the proceeds of the Loans made hereunder shall be used by Borrower, solely on or after the Closing Date, in accordance with the Confirmation Order and the Approved Budget: (i) to repay and refinance on the Closing Date on a dollar for dollar basis certain then outstanding Indebtedness under the DIP Credit Agreement, (ii) to pay related transaction costs, fees and expenses with respect to the Loan Documents and the Exit Transactions, (iii) to make the other payments in accordance with the Approved Budget, and (iv) to provide working capital, and for other general corporate purposes of the Loan Parties and their respective Subsidiaries.  Loan Parties shall not be permitted to use the proceeds of the Loans in contravention of the provisions of the Loan Documents.

Section 3.13        Taxes.  Each Company has (a) timely filed or caused to be timely filed all material federal, state, local and foreign Tax Returns and other materials required to have been filed by it and all such Tax Returns are true and correct in all material respects and (b) duly and timely paid or caused to be duly and timely paid all material Taxes (whether or not shown on any Tax Return) due and payable by it and all assessments received by it, except Taxes that are being contested in good faith by appropriate proceedings and for which such Company has set aside on its books adequate reserves in accordance with GAAP.  Each Company has made adequate provision in accordance with GAAP for all Taxes not yet due and payable.  No Company has knowledge (or could reasonably have knowledge upon due inquiry) of any proposed or pending tax assessments, deficiencies, audits or other proceedings and no proposed or pending material tax assessments, deficiencies, audits or other proceedings have resulted, or could, individually or in the aggregate, reasonably be expected to result, in a Material Adverse Effect.  No Company has ever “participated” in a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4.  No Company is party to any tax sharing or similar agreement.

Section 3.14       No Material Misstatements.  None of the reports, financial statements, certificates, borrowing requests or other written information (other than projections, forward-looking information and information of a general economic or industry-specific nature) furnished by or on behalf of Borrower to the Administrative Agent or any Lender in connection with the negotiation of any Loan Document or delivered pursuant thereto (as modified or supplemented by other information so furnished), when taken as a whole, contained or contains any material misstatement of fact or omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect as of the date such information is dated or certified; provided that, with respect to projected financial information, Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time (it being understood that any such projected financial information is not to be viewed as fact, is not a guarantee of financial performance and is subject to uncertainties and contingencies, many of which are beyond any Company’s control, that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material).

Section 3.15        Labor Matters.  There are no strikes, lockouts or slowdowns against any Company pending or, to the best of the knowledge of the Loan Parties, threatened that have resulted in, or could reasonably be expected to result in, a Material Adverse Effect.  The hours worked by and payments made to employees of any Company have not been in violation of the Fair Labor Standards Act of 1938, as amended, or any other applicable Legal Requirement dealing with such matters in any manner that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect.  All payments due from any Company, or for which any claim may be made against any Company, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of such Company except to the extent that the failure to do so has not resulted in, and could not reasonably be expected to result in, a Material Adverse Effect.  Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, the consummation of the Transactions will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any Company is bound.

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Section 3.16        Solvency. On the Closing Date, after giving effect to the Exit Transactions, (a) the fair value of the properties of the Loan Parties, taken as whole, will exceed their debts and liabilities, subordinated, contingent or otherwise, taken as a whole, (b) the present fair saleable value of the Property of the Loan Parties, taken as a whole, will be greater than the amount that will be required to pay the probable liability of their debts and other liabilities, subordinated, contingent or otherwise, taken as a whole, as such debts and other liabilities become absolute and matured, (c) the Loan Parties, taken as a whole, will be able to pay their debts and liabilities, subordinated, contingent or otherwise, taken as a whole, as such debts and liabilities become absolute and matured; and (d) the Loan Parties, taken as a whole, will not have unreasonably small capital with which to conduct their business in which they are engaged as such businesses are now conducted and are proposed, contemplated or about to be conducted following the Closing Date.

Section 3.17        Employee Benefit Plans

(a)          Each Company and each of its ERISA Affiliates is in material compliance with all applicable Legal Requirements, including all applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder, with respect to all Employee Benefit Plans except to the extent that the failure to do so has not resulted in, and could not reasonably be expected to result in, a Material Adverse Effect.  Each Employee Benefit Plan complies in all material respects, and is operated and maintained in compliance in all material respects, with all applicable Legal Requirements, including all applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder except to the extent that the failure to do so has not resulted in, and could not reasonably be expected to result in, a Material Adverse Effect.  Each Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service for all required amendments and nothing has occurred which would prevent, or cause the loss of, such qualification.

(b)          No ERISA Event (i) has occurred or (ii) is expected to occur, and with respect to subsection (ii), to which any Company or any of its ERISA Affiliates is reasonably expected to incur any material liability.  No Pension Plan has any Unfunded Pension Liability.  Within the last six years, no Pension Plan has been terminated, whether or not in a “standard termination” as that term is used in Section 4041 of ERISA under which any Company or any of its ERISA Affiliates has any liability which has not been satisfied in full, nor has any Pension Plan (determined at any time within the last six years) with an Unfunded Pension Liability been transferred outside of the “controlled group” (within the meaning of Section 4001(a)(14) of ERISA) of any Company or any of its ERISA Affiliates.  Using actuarial assumptions and computation methods consistent with subpart I of subtitle E of Title IV of ERISA, the aggregate liabilities of any Company or any of its ERISA Affiliates to all Multiemployer Plans in the event of a complete withdrawal therefrom, as of the close of the most recent fiscal year of each such Multiemployer Plan, have not resulted in, and could not reasonably be expected to result in, a Material Adverse Effect.

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(c)         With respect to Canadian Pension Plans, in each case except to the extent that the failure to do so has not resulted in, and could not reasonably be expected to result in, a Material Adverse Effect:  (i) as of the Closing Date, no steps have been taken to terminate any Canadian Pension Plan (wholly or in part) which could result in any Company being required to make an additional contribution to the Canadian Pension Plan; (ii) no Canadian Pension Plan is a “registered pension plan”, as that term is defined in subsection 248(1) of the Income Tax Act (Canada), which is or was sponsored, administered or contributed to, or required to be contributed to by, any Loan Party or under which any Loan Party has any actual or potential liability, and which contains a “defined benefit provision”, as defined in subsection 147.1(1) of the Income Tax Act (Canada), (iii) all contributions (including employee contributions made by authorized payroll deductions or other withholdings) required to be made in accordance with all applicable Legal Requirements and the terms of each Canadian Pension Plan have been made in accordance with all applicable Legal Requirements and the terms of each Canadian Pension Plan, in each case in all material respects; and (iv) each Canadian Pension Plan is maintained in all material respects in compliance with all applicable Legal Requirements.

(d)          To the extent applicable, each Foreign Plan has been established, administered and maintained in substantial compliance with its terms and with the requirements of all Legal Requirements and has been maintained, where required, in good standing with applicable regulatory authorities, in each case in all material respects except to the extent that the failure to do so has not resulted in, and could not reasonably be expected to result in, a Material Adverse Effect.  No Company has incurred any material obligation in connection with the termination of or withdrawal from any Foreign Plan.  The present value of the accrued benefit liabilities (whether or not vested) under each Foreign Plan which is funded, determined as of the end of the most recently ended, fiscal year of the respective Company on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the Property of such Foreign Plan, and for each Foreign Plan which is not funded, the obligations of such Foreign Plan are properly accrued.  All contributions or payments which are due with respect to each Foreign Plan have been made in full, in each case in all material respects.  All amounts payable under any Foreign Plan are properly reflected on the financial statements of the applicable Company.

Section 3.18        Environmental Matters.  Except for the matters described on Schedule 3.18 and except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, neither Borrower nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any Environmental Claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.

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Section 3.19        Insurance.  Each Company has insurance in such amounts and covering such risks and liabilities as are customary for companies of a similar size engaged in similar businesses in similar locations.  All insurance required to be maintained by the Companies under the immediately preceding sentence is in full force and effect, all premiums in respect thereof have been duly paid.  Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, all Real Property of each Company, and the use, occupancy and operation thereof, comply in all respects with all Insurance Requirements.

Section 3.20        Mortgages.  Subject to the entry of the Confirmation Order, each Mortgage is effective to create, in favor of the Collateral Agent, for its benefit and the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on, and security interests in, all of the Loan Parties’ right, title and interest in and to the Material Properties thereunder and the proceeds thereof (excluding any Excluded Property), subject only to Permitted Liens, and when the Mortgages are filed in accordance with the provisions of Sections 5.11, 5.12 and 5.18, as applicable, when such Mortgage is filed in the offices specified in the local counsel opinion delivered with respect thereto in accordance with the provisions of Sections 5.11, 5.12 and 5.18, as applicable), the Mortgages shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the Loan Parties in the Material Properties and the proceeds thereof (excluding any Excluded Property), in each case prior and superior in right to any other Person, other than Permitted Liens.

Section 3.21        Anti-Terrorism Law; Foreign Corrupt Practices Act.

(a)         No Company and, to the knowledge of each Company, none of its Affiliates is in violation of, or shall use any proceeds of the Loans in violation of, any Legal Requirements relating to (i) terrorism or money laundering (“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive Order”), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (the “Patriot Act”), the Criminal Code (Canada) and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and, in each case, the regulations promulgated thereunder (collectively, the “Canadian Anti-Terrorism Laws”), and (ii) OFAC and Canadian Sanctions.

(b)         No Company and to the knowledge of each Company, no Affiliate, representative or agent of any Company, is (i) currently the subject of, controlled by any entity or Person that is the subject of, or acting on behalf of any entity or Person that is the subject of, any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or to any Canadian economic sanctions, including under the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada) and the Criminal Code (Canada) and, in each case, the regulations promulgated thereunder (“Canadian Sanctions”), (ii) is located in, or has any assets located in, any Sanctioned Country, or (iii) is under administrative, civil or criminal investigation for an alleged violation of, or has received notice from or made a voluntary disclosure to any governmental entity regarding a possible violation of, any Anti-Terrorism Law, any Canadian Anti-Terrorism Law or any Sanctions Laws, by a governmental authority that enforces such laws; and Borrower will not directly or indirectly use the proceeds of the Loans or otherwise make available such proceeds to any Person or entity, for the purpose of financing the activities of any Person or entity currently the subject of any U.S. sanctions administered by OFAC or any Canadian Sanctions.

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(c)          No Company and, to the knowledge of each Company, no Affiliate or agent of any Company, (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Person described in clause (b) above, (ii) deals in, or otherwise engages in any transaction relating to, any Property or interests in Property blocked or frozen pursuant to the Executive Order or any Canadian Sanctions, or otherwise directly or indirectly derives revenues from investments in, or transactions with, any Person described in clause (b) above or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, any Canadian Anti-Terrorism Law, any Canadian Anti-Terrorism Law or any Sanctions Law.

(d)         Each Company and each of their respective Subsidiaries has implemented and maintains in effect policies and procedures designed to ensure compliance by each Company and its respective Subsidiaries and each of their respective directors, officers, employees, agents and Affiliates with all Anti-Terrorism Laws, Canadian Anti-Terrorism Laws and Sanctions Laws.

(e)          No Company nor any director or officer, nor to the knowledge of the Loan Parties, any agent, employee or other Person acting, directly or indirectly, on behalf of any Company, has, in the course of its actions for, or on behalf of, any Company, directly or indirectly (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977 or the Corruption of Foreign Public Officials Act (Canada); or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.

Section 3.22        Security Documents.

(a)          Subject to the entry of the Confirmation Order, the Security Agreement is effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable security interests in, the Security Agreement Collateral and, (i) when financing statements (including fixture filings and transmitting utility filings, as applicable) and other filings in appropriate form are filed in the appropriate offices (as updated in accordance with the terms hereof) and (ii) upon the taking of possession or control by the Collateral Agent of the Security Agreement Collateral with respect to which a security interest may be perfected by possession or control (which possession or control shall be given to the Collateral Agent to the extent possession or control by the Collateral Agent is required by each Security Document), the Liens created by the Security Agreement shall, to the extent such Liens can be perfected by the taking of such actions, constitute fully perfected security interests in, all right, title and interest of the grantors thereunder in the Security Agreement Collateral, in each case subject to no Liens other than Permitted Liens.

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(b)         Subject to the entry of the Confirmation Order, when (i) the Security Agreement or a short form thereof is filed in the United States Patent and Trademark Office and the United States Copyright Office, and (ii) financing statements (including fixture filings and transmitting utility filings, as applicable) and other filings in appropriate form are filed in the appropriate offices (as updated in accordance with the terms hereof), the Liens created by such Security Agreement shall constitute in the United States fully perfected Liens on, and security interests in, all right, title and interest of the grantors thereunder in the Intellectual Property Collateral (as defined in such Security Agreement), in each case, if and to the extent a security interest in such Intellectual Property Collateral can be perfected solely by such filing.

Section 3.23        No EEA Financial Institution.  No Loan Party is an EEA Financial Institution.

ARTICLE IV.

CONDITIONS TO CREDIT EVENTS

Section 4.01        Conditions to Closing Date.  The obligation of each Lender to fund (or be deemed to have funded) the Loans on the Closing Date shall be subject to the prior or concurrent satisfaction of each of the conditions precedent set forth in this Section 4.01.

(a)          Loan Documents.  All legal matters incident to this Agreement, the Credit Events hereunder and the other Loan Documents shall be satisfactory to the Required Lenders and delivered to the Administrative Agent and the Lenders and there shall have been delivered to the Administrative Agent and the Lenders a properly executed counterpart of each of the Loan Documents (including the Intercreditor and Collateral Agency Agreement).

(b)          Corporate Documents.  The Administrative Agent and the Lenders shall have received (in each case satisfactory to the Required Lenders):

(i)           a certificate of the secretary or assistant secretary of each Loan Party dated the Closing Date, certifying (A) that attached thereto is a true and complete copy of each Organizational Document of such Loan Party certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its incorporation or organization, as the case may be, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of Borrower, the Credit Events hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate required by this clause (i));

(ii)          a certificate as to the good standing of each Loan Party (in so-called “long-form” if available) as of a recent date, from such Secretary of State; and

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(iii)         such other customary documents, instruments or certificates as the Required Lenders or the Administrative Agent may reasonably request.

(c)        Officers’ Certificate.  The Administrative Agent and the Lenders shall have received a customary certificate (reasonably satisfactory to the Required Lenders), dated the Closing Date and signed by a Financial Officer of Borrower, (x) confirming compliance with the conditions precedent set forth in Section 4.01 (other than any matters which are to be delivered by, provided by, or subject to the satisfaction of, any party other than the Loan Parties) and (y) certifying that (1) upon entry of the Confirmation Order, all member, board of directors, governmental, shareholder and other material third party consents and approvals necessary in connection with the entering into of this Agreement have been obtained or no such consents and approvals are required, and (2) the respective Indebtedness or obligations of Borrower and the Guarantors and any Liens securing the same that are outstanding immediately after the consummation of the Approved Plan shall not exceed the amount contemplated by the Approved Plan.

(d)          Confirmation Order. The Confirmation Order, authorizing Borrower, Guarantors, and their Subsidiaries to execute, deliver, and perform their obligations under this Agreement (including the payment of all fees with respect thereto), shall have been entered and shall be in full force and effect and shall not (i) have been stayed, reversed, vacated, amended, supplemented or otherwise modified in any manner that could be reasonably expected to adversely affect the interests of the Administrative Agent or the Required Lenders or (ii) be the subject of an appeal;

(e)          Exit Transactions.  The Exit Transactions, including the Approved Plan and all transactions contemplated therein and in the Confirmation Order to occur on the effective date of the Approved Plan, shall have been (or concurrently with the occurrence of the Closing Date, shall be) substantially consummated in accordance with applicable law, the Bankruptcy Court, and regulatory approvals and on terms and conditions, and pursuant to documentation in form and substance reasonably satisfactory to, the Required Lenders;

(f)          Collateral

(i)          Personal Property Requirements.  Except as otherwise provided in the Post-Closing Agreement, the Collateral Agent and the Lenders shall have received:

(1)          all certificates, agreements or instruments representing or evidencing the Securities Collateral accompanied by instruments of transfer and stock powers undated and endorsed in blank to the Collateral Agent; the Intercompany Note executed by and among the Companies, accompanied by an endorsement to the Intercompany Note in the form attached thereto, undated and endorsed in blank by each of the Loan Parties;

(2)          all other certificates, agreements, including control agreements, or instruments necessary to perfect the Collateral Agent’s security interest in all Chattel Paper, all Instruments, all Deposit Accounts and all Investment Property of each Loan Party, in each case to the extent constituting Collateral (as each such term is defined in, and to the extent required by, the Security Agreement);

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(3)          UCC financing statements (including fixture filings and transmitting utility filings, as applicable) in appropriate form for filing under the UCC, filings with the United States Patent and Trademark Office and United States Copyright Office and such other documents under applicable Legal Requirements in each jurisdiction as may be necessary or appropriate or, in the opinion of the Collateral Agent, desirable to perfect the Liens created, or purported to be created, by the Security Documents;

(4)          certified copies, each as of a recent date, of (1) UCC searches with respect to each Loan Party that the Collateral Agent deems necessary or appropriate, (2) United States Patent and Trademark Office and United States Copyright Office searches with respect to each Loan Party, (3) tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches listing all effective lien notices or comparable documents that name any Company as debtor and that are filed in the state and county jurisdictions in which any Company is organized or maintains its principal place of business, and (4) such other searches that the Collateral Agent deems necessary or appropriate;

(5)          with respect to each location set forth in the Perfection Certificate, a Landlord Access Agreement or Bailee Letter, as applicable; and

(6)          evidence reasonably acceptable to the Collateral Agent of payment or arrangements for payment by the Loan Parties of all applicable filing or recording taxes, fees, charges, costs and expenses required for the filing or recording of the Security Documents.

(ii)          Real Property.  Except as otherwise provided in the Post-Closing Agreement, the Collateral Agent and the Lenders shall have received:

(1)         a Mortgage encumbering each Material Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any leasehold interest in such Material Property, and otherwise in form for recording or filing in the recording or filing office of each applicable governmental subdivision where each such Material Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Legal Requirements, and such financing statements (including fixture filings and transmitting utility filings, as applicable) and any other instruments necessary to grant a mortgage Lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent;

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(2)          with respect to each Material Property, such consents, approvals, amendments, supplements, estoppels, memoranda of leases or other instruments as are necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee or leasehold interest constituting such Material Property to grant the Lien contemplated by the Mortgage with respect to such Material Property;

(3)          with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Material Property and fixtures described therein in the amount equal to not less than 100% of the Fair Market Value of such Material Property and fixtures or other value reasonably acceptable to the Collateral Agent, which Fair Market Value (or such other value) as of the Closing Date is set forth in the Perfection Certificate, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable Legal Requirements (i.e., policies which insure against losses regardless of location or allocated value of the insured Property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, opinions of special counsel, architects or other professionals reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, variable rate, environmental lien, subdivision, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions), and (E) contain no exceptions to title other than exceptions reasonably acceptable to the Collateral Agent;

(4)          with respect to each Material Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the Title Policy/ies and endorsements contemplated above;

(5)          evidence reasonably acceptable to the Collateral Agent of payment by Borrower of all Title Policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the Title Policies referred to above;

(6)          with respect to each Material Property, copies of (i) all Leases in which any Loan Party holds the lessor’s interest or other agreements relating to possessory interests, if any and (ii) all Data Center Leases.

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(7)          with respect to each Material Property, each Loan Party shall have made all notifications, registrations and filings, to the extent required by, and in accordance with, all Governmental Real Property Disclosure Requirements applicable to such Material Property;

(8)          evidence in the form of a standard “life of loan” flood hazard determination certificate for each Material Property as to whether (i) such Material Property is a Flood Hazard Property and (ii) the community in which such Flood Hazard Property is located is participating in the National Flood Insurance Program; and

(9)          if such Material Property is a Flood Hazard Property, the relevant Loan Party’s written acknowledgment of receipt of written notification from the Administrative Agent (i) as to the existence of such Flood Hazard Property and (ii) as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program

(g)          Perfection Certificate.  The Administrative Agent and the Lenders shall have received a completed Perfection Certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, together with all attachments contemplated thereby, and the results of a search of the UCC (or equivalent), tax and judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by or listed on the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence satisfactory to the Administrative Agent (acting at the direction of Required Lenders) that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been, or will be simultaneously or substantially concurrently with the closing under this Agreement, released (or arrangements satisfactory to the Administrative Agent (acting at the direction of Required Lenders) for such release shall have been made).

(h)          Funds Flow. The Administrative Agent and the Lenders shall have received a funds flow memorandum acceptable to the Required Lenders, executed by a Responsible Officer of Borrower as of the Closing Date.

(i)         Solvency Certificate. The Administrative Agent and the Lenders shall have received a solvency certificate from the chief financial officer, chief accounting officer or other officer with equivalent duties of Borrower (after giving effect to the Exit Transactions) substantially in the form attached hereto as Exhibit B;

(j)         Legal Opinions. The Administrative Agent and the Lenders shall have received, on behalf of itself, the other Agents, and the Lenders, a favorable written opinion of Jenner & Block LLP, special counsel for the Loan Parties, and Fasken Martineau DuMoulin LLP, special Canadian counsel for the Loan Parties, which opinions will be (A) dated the Closing Date, (B) addressed to the Agents and the Lenders and (C) covering such matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request.

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(k)         Second Out Term Loan Facility. The Administrative Agent and the Lenders shall have received evidence reasonably satisfactory to it (acting at the direction of Required Lenders) that substantially simultaneously with the deemed making of the Loans hereunder on the Closing Date, the Second Out Term Loan Credit Agreement and the other Second Out Term Loan Documents, in each case, shall have been entered into, and the financing transactions thereunder shall have been consummated, in accordance with their terms on the Closing Date.

(l)          [Reserved].

(m)         Financials.   The Administrative Agent and the Lenders shall have received, and the Required Lenders shall be reasonably satisfied with, at least 1 Business Day prior to the Closing Date, (i) an unaudited financial summary of the financial performance, bookings update, and unaudited income statement, and a balance sheet of Borrower and its Subsidiaries on a consolidated basis for the month ended March 31, 2020 and (ii) an updated 13-Week cash flow forecast as of the Closing Date.

(n)          Budget.  The Administrative Agent and each Lender shall have received the Approved Budget.

(o)          No Default.  No Default or Event of Default shall have occurred and be continuing or would result from the Exit Transactions.

(p)          Material Adverse Effect. Since the Petition Date, there shall not have occurred any event, change, occurrence or effect that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(q)          Representation and Warranties.  As of the Closing Date, each of the representations and warranties relating to any Company set forth in Article III or in any other Loan Document shall be true and correct in all material respects on and as of the Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date); provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on and as of the Closing Date.

(r)          Existing Indebtedness. The obligations under the DIP Credit Agreement and the Pre-Petition Credit Agreement shall have been repaid (or deemed repaid) on the Closing Date, including the conversion of DIP Roll Up Loans and the DIP New Money Loans (in each case, as defined in the DIP Credit Agreement) into Loans hereunder; provided, however, any fees and expenses due and owing under the DIP Credit Agreement will be paid in full in cash on the Closing Date pursuant to the Approved Plan. The Administrative Agent and the Lenders shall have received satisfactory release letters with respect to all existing Indebtedness under the DIP Credit Agreement and the Pre-Petition Credit Agreement and, in each case, which confirms that all Liens upon any of the property of the Loan Parties in connection with the obligations thereunder will be terminated concurrently with such payment (together with copies of all relevant release documents in recordable form and executed where applicable).

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(s)          Fees.  All Fees (including any fees to be paid for the account of any Lender on the Closing Date that Borrower has previously agreed to in writing) and other amounts due and payable on or before the Closing Date, including, to the extent invoiced not less than one Business Day prior to the Closing Date, reimbursement or payment of all out-of-pocket expenses (including the premiums and recording taxes and fees and the legal fees and expenses of the Specified Lender Advisors, Jones Day, as legal counsel to the administrative agent and the collateral agent under the DIP Credit Agreement, and Willkie Farr & Gallagher LLP, as legal counsel to the Administrative Agent and the Collateral Agent), and the fees and expenses of any local counsel, foreign counsel, appraisers, consultants and other advisors, shall be paid (or will be paid from the proceeds of the Loans), in each case to the extent required to be reimbursed or paid by the Loan Parties hereunder or under any other Loan Document.

(t)          Bank Regulatory Documentation.  To the extent requested not less than three Business Days prior to the Closing Date, the Administrative Agent and the Lenders shall have received, in form and substance satisfactory to them, all documentation and other information required by bank regulatory authorities or reasonably requested by the Administrative Agent or any Lender under or in respect of applicable Anti-Terrorism Laws or “know-your-customer” Legal Requirements, including the Executive Order.

Section 4.02        Conditions to All Credit Events.  The obligation of each Lender to make any Credit Event shall be subject to, and to the satisfaction, or waiver by the Required Lenders, of each of the conditions precedent set forth below.

(a)          No Default.  At the time of and immediately after giving effect to such Credit Event and the application of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing on such date.

(b)          Representations and Warranties.  Each of the representations and warranties made by any Loan Party set forth in Article III or in any other Loan Document shall be true and correct in all material respects on and as of the date of such Credit Event with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date); provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.

(c)          Fees.  All reasonable and documented out-of-pocket fees and expenses required to be paid under the Loan Documents shall have been paid (or will be paid from the proceeds of such Loans).

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(d)        Confirmation Order. The Confirmation Order, authorizing Borrower, Guarantors, and their Subsidiaries to execute, deliver, and perform their obligations under this Agreement (including the payment of all fees with respect thereto), shall have been entered and shall be in full force and effect and shall not (i) have been stayed, reversed, vacated, amended, supplemented or otherwise modified in any manner that could be reasonably expected to adversely affect the interests of the Lenders or (ii) be the subject of an appeal.

(e)          Approved Budget.  The proceeds of the Loans shall be used as set forth in the Approved Budget.

The acceptance by Borrower of the Loans shall conclusively be deemed to constitute a representation by Borrower that each of the conditions precedent set forth in Section 4.02 shall have been satisfied in accordance with its respective terms or shall have been irrevocably waived by the applicable relevant Person; provided, however, that the making of any such Loan (regardless of whether the lack of satisfaction was known or unknown at the time), shall not be deemed a modification or waiver by the Administrative Agent, any Lender or other Secured Party of the provisions of this Article 4 on such occasion or on any future occasion or operate as a waiver of (i) the right of Administrative Agent and Lenders to insist upon satisfaction of all conditions precedent with respect to any subsequent funding or issuance, (ii) any Default or Event of Default due to such failure of conditions or otherwise or (iii) any rights of any Agent or any Lender as a result of any such failure of the Loan Parties to comply.

ARTICLE V.

AFFIRMATIVE COVENANTS

Each Loan Party warrants, covenants and agrees with the Administrative Agent, the Collateral Agent, and each Lender that so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest and premium (if any) on each Loan, all Fees and all other expenses or amounts then due and payable under any Loan Document shall have been paid in full, each Loan Party will, and will cause each of its Subsidiaries to:

Section 5.01        Financial Statements, Reports, etc.

Furnish to the Administrative Agent for distribution to the Lenders:

(a)          Annual Reports.  As soon as available and in any event within 120 days after the end of each fiscal year, (i) the audited consolidated balance sheet of Borrower and its Subsidiaries as of the end of such fiscal year and related consolidated statements of income, cash flows and stockholders’ equity for such fiscal year, in comparative form with such financial statements as of the end of, and for, the preceding fiscal year (for periods occurring after the implementation of “fresh-start” accounting), and notes thereto, all prepared in accordance with GAAP and accompanied by an opinion of BDO USA, LLP or other independent public accountants of recognized national standing, stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of Borrower and such Subsidiaries as of the dates and for the periods specified in accordance with GAAP and (ii) a management’s discussion and analysis of the financial condition and results of operations for such fiscal year, as compared to the previous fiscal year and budgeted amounts;

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(b)          Quarterly Reports.  Within 45 days of the end of the first three fiscal quarters of each fiscal year (except (x) with respect to the fiscal quarter ending June 30, 2020, within 75 days of the end of such fiscal quarter and (y) with respect to the fiscal quarter ending September 30, 2020, within 60 days of the end of such fiscal quarter), (i) the consolidated balance sheet of Borrower and its Subsidiaries as of the end of such fiscal quarter and related consolidated statements of income and cash flows for such fiscal quarter and for the then elapsed portion of the fiscal year, in comparative form with the consolidated statements of income and cash flows for the comparable periods in the previous fiscal year (for periods occurring after the implementation of “fresh-start” accounting), and notes thereto, all prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) and accompanied by a certificate of a Financial Officer stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of Borrower and such Subsidiaries as of the date and for the periods specified in accordance with GAAP consistently applied, and on a basis consistent with audited financial statements referred to in clause (a) of this Section 5.01, subject to normal year-end audit adjustments and the absence of footnotes and (ii) a management’s discussion and analysis of the financial condition and results of operations for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year and budgeted amounts;

(c)          Financial Officer’s Certificate.  Concurrently with any delivery of financial statements under Section 5.01(a) or (b) above, a Compliance Certificate certifying that no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying in reasonable detail the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;

(d)          [Reserved];

(e)          Public Reports.  Promptly after the same become publicly available, copies of all periodic and other reports, proxy statements, notices and other materials or information filed by any Company with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed to holders of its Indebtedness pursuant to the terms of the documentation governing such Indebtedness (or any trustee, agent or other representative therefor), as the case may be;

(f)          Management Letters.  Promptly after the receipt thereof by any Company, a copy of any “management letter” or similar document received by any such Person from its certified public accountants and the management’s responses thereto;

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(g)         Budgets.  As soon as available and in any event within 90 days after the end of each fiscal year of Borrower (but no later than any delivery of financial statements under Section 5.01(a)), a consolidated budget in form reasonably satisfactory to the Administrative Agent (including budgeted statements of income for each of Borrower’s and its Subsidiaries’ business units and sources and uses of cash and balance sheets) prepared by Borrower for (i) each fiscal quarter of such fiscal year prepared in detail and (ii) such fiscal year and the immediately two succeeding fiscal years (except that no budget is required to be provided for any fiscal year after the fiscal year in which the Maturity Date occurs) in summary form, in each case, of Borrower and its Subsidiaries, with appropriate presentation and discussion in reasonable detail of the principal assumptions upon which such budget is based, accompanied by a certificate of a Financial Officer of Borrower certifying that the budget of Borrower and its Subsidiaries is a reasonable estimate for the period covered thereby;

(h)         Certification of Public Information.  Borrower and each Lender acknowledges that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to this Section 5.01 or otherwise are being distributed through a Platform, any document or notice that Borrower has not specifically labeled “Public-Contains Only Public Information” shall not be posted on that portion of the Platform designated for such Public Lenders.  If Borrower has not so labeled a document or notice delivered pursuant to this Section 5.01, the Administrative Agent reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material Non-Public Information with respect to Borrower, its Subsidiaries and their securities.  Notwithstanding anything in any Loan Document to the contrary, documents required to be delivered pursuant to Sections 5.01(a)(i) and (b)(i) may be posted on that portion of the Platform designated for Public Lenders regardless of whether Borrower has or has not specifically labeled any such document “Public-Contains Only Public Information;”

(i)          Regulatory Information.  Promptly, from time to time, copies of such reports and written information to and from any Governmental Authority, including the FCC and any PUC, with jurisdiction over the Property or business of any Company, as the Administrative Agent may reasonably request; and

(j)          Other Information.  Promptly, from time to time, such other information regarding the operations, business affairs and financial condition of any Company, or compliance with the terms of any Loan Document, or the environmental condition of any Real Property, as the Administrative Agent or any Lender may reasonably request.  Each Lender acknowledges that the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to in this Section 5.01, and in any event shall have no responsibility to monitor compliance by Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery (from the Administrative Agent) of or maintaining its copies of such documents.

Documents required to be delivered pursuant to Section 5.01(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and shall be deemed to have been delivered on the date (1) on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the Internet and gives written notice thereof to the Administrative Agent; or (2) on which such documents are posted on a U.S. government website or on Borrower’s behalf on an Internet or intranet website, if any, in each case, to which the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).

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Section 5.02        Litigation and Other Notices.  Furnish to the Administrative Agent (who shall distribute to the Lenders) written notice of the following promptly (and, in any event, within ten (10) Business Days (or, in the case of Section 5.02(a), within five (5) Business Days) following the occurrence thereof):

(a)          knowledge of the occurrence of any Default or the occurrence of any Event of Default, specifying the nature and extent thereof and the corrective action (if any) taken or proposed to be taken with respect thereto;

(b)          the filing or commencement of, or any threat or notice of intention of any Person to file or commence, any action, suit, litigation or proceeding, whether at law or in equity or otherwise by or before any Governmental Authority, (i) against any Company or any Affiliate thereof that has had, or could reasonably be expected to result in, a Material Adverse Effect, (ii) with respect to any Loan Document or (iii) with respect to any of the other Transactions;

(c)          any development that has resulted, or could reasonably be expected to result, in a Material Adverse Effect;

(d)          the occurrence of a Casualty Event in excess of $5,000,000 (whether or not covered by insurance);

(e)          the occurrence of any ERISA Event or any events with respect to Canadian Pension Plans or Foreign Plans that, alone or together with any other ERISA Events or any events with respect to Canadian Pension Plans or Foreign Plans that have occurred, could reasonably be expected to result in liability of Borrower and its Subsidiaries in an aggregate amount exceeding $5,000,000;

(f)          the receipt by any Company of any notice of any Environmental Claim, Release or violation of or potential liability under, or knowledge by any Company that there exists a condition that has resulted, or could reasonably be expected to result, in an Environmental Claim, Release or a violation of or liability under, any Environmental Law, except for Environmental Claims, Releases, violations and liabilities the consequence of which, in the aggregate, have not subjected and could not be reasonably be expected to subject the Companies collectively to liabilities exceeding $5,000,000; and

(g)          any Material Adverse Lease Event.

Section 5.03        Existence; Businesses and Properties.

(a)          Do or cause to be done all things necessary to preserve, renew and maintain in full force and effect its legal existence and take all commercially reasonable action to maintain all rights and franchises, licenses and permits material to its business, except as otherwise expressly permitted under Section 6.05 or 6.06.

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(b)          Except if the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, do or cause to be done all things that are commercially reasonable and necessary to maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all material properties used or useful in the business of Borrower and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof, consistent with past practice.

Section 5.04        Insurance.

(a)          Maintain, with insurers that Borrower believes in good faith are financially sound and reputable, insurance, to such extent and against such risks as is customary with companies in the same or similar businesses operating in the same or similar locations in similar circumstances, including insurance with respect to Material Properties against such casualties and contingencies and of such types and in such amounts with such deductibles and provisions for minimum claim amounts as is customary in the case of similar businesses operating in the same or similar locations, and will furnish to the Administrative Agent, upon its written request, information presented in reasonable detail as to the insurance so carried; provided that with respect to physical hazard insurance, following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall be entitled to agree to the adjustment of any claim thereunder without the consent of any Company.  No later than 10 Business Days following the Closing Date (or such later date as the Required Lenders shall agree), each such policy of insurance shall as appropriate, (i) name the Collateral Agent, on behalf of the Lenders, as an additional insured thereunder as its interests may appear and/or (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement that names the Collateral Agent, on behalf of the Lenders, as lender’s loss payee thereunder.

(b)          With respect to each Material Property, obtain flood insurance (which may take the form of a separate policy or be included as part of Borrower’s casualty insurance policy) in such total amount as the Administrative Agent or the Required Lenders may from time to time reasonably require, if at any time the area in which any improvements located on any Material  Property is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973.

(c)          No Loan Party that is an owner or lessee of any Material Property shall take any action that is reasonably likely to be the basis for termination, revocation or denial of any insurance coverage required to be maintained under such Loan Party’s respective mortgage or under Section 5.04(a), and each Loan Party shall otherwise comply in all material respects with all material Insurance Requirements in respect of the premises; provided, however, that each Loan Party may, at its own expense and after written notice to the Administrative Agent, (i) contest the applicability or enforceability of any such Insurance Requirements by appropriate legal proceedings, the prosecution of which does not constitute a basis for cancellation or revocation of any insurance coverage required under this Section 5.04 or (ii) cause the Insurance Policy containing any such Insurance Requirement to be replaced by a new policy complying with the provisions of this Section 5.04.

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Section 5.05        Obligations and Taxes.  File all applicable Tax returns and pay and discharge promptly when due all Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its Property, before the same shall become delinquent or in default, as well as all lawful claims for labor, services, materials and supplies or otherwise that, if unpaid, might give rise to a Lien other than a Permitted Lien upon such properties or any part thereof; provided that such payment and discharge shall not be required with respect to any such Tax, assessment, charge, levy or claim so long as (i) the validity or amount thereof shall be contested in good faith by appropriate proceedings timely instituted and diligently conducted and the applicable Company shall have set aside on its books adequate reserves or other appropriate provisions with respect thereto in accordance with GAAP, and (ii) such contest operates to suspend collection of the contested obligation, Tax, assessment or charge and enforcement of a Lien other than a Permitted Lien.

Section 5.06        Employee Benefits.

(a)         Furnish to the Administrative Agent (x) as soon as possible after, and in any event within five (5) Business Days after any Responsible Officer of any Company or any ERISA Affiliate of any Company knows or has reason to know that, any ERISA Event or other event with respect to an Employee Benefit Plan has occurred that, alone or together with any other ERISA Event could reasonably be expected to result in liability of the Companies or any of their ERISA Affiliates in an aggregate amount exceeding $5,000,000 or the imposition of a Lien, a statement of a Financial Officer of Borrower setting forth details as to such ERISA Event and the action, if any, that the Companies propose to take with respect thereto, and (y) upon request by the Administrative Agent, copies of (i) any annual report (Form 5500 Series) filed by any Company or any of its ERISA Affiliates with the Employee Benefits Security Administration with respect to each Employee Benefit Plan; (ii) the most recent actuarial valuation report for each Pension Plan or Multiemployer Plan and each annual report for any Multiemployer Plan; (iii) all notices received by any Company or any of its ERISA Affiliates from a Multiemployer Plan sponsor or any Governmental Authority concerning an ERISA Event; and (iv) such other information, documents or governmental reports or filings relating to any Employee Benefit Plan as the Administrative Agent shall reasonably request.

(b)         Maintain all Employee Benefit Plans, Canadian Pension Plans and Foreign Plans in compliance in all material respects with all applicable Legal Requirements and ensure that all premiums and payments relating to Employee Benefit Plans, Canadian Pension Plans and Foreign Plans are paid as due, except to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect; provided, however, that a Loan Party may terminate any such plan in accordance with all applicable Legal Requirements if the aggregate unfunded liability to the Loan Parties is not greater than $5,000,000.

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Section 5.07         Maintaining Records; Access to Properties and Inspections; Annual Meetings.

(a)          Keep proper books of record and account in which entries in conformity with GAAP are made of all material dealings and transactions in relation to its business and activities.  Upon reasonable advance notice (unless an Event of Default exists, in which case no notice shall be required), each Company will permit any representatives designated by the Administrative Agent or any Lender during normal business hours to visit and inspect the financial records and the Property of such Company and to make extracts from and copies of such financial records, and permit any representatives designated by the Administrative Agent or any Lender to discuss the affairs, finances, accounts and condition of any Company with the officers and employees thereof and advisors therefor (including independent accountants); provided that (1) excluding any such visits and inspections during the continuation of an Event of Default, only representatives of the Administrative Agent or Collateral Agent on behalf of the Secured Parties, may exercise visitation and inspection rights under this Section 5.07, and (2) the Administrative Agent and the Secured Parties shall not exercise such rights more than twice in any period of 12 consecutive months, absent the existence of an Event of Default.

(b)         Within one hundred thirty five (135) days after the close of each fiscal year of the Companies, at the request of the Administrative Agent or Required Lenders, hold a meeting (at a mutually agreeable location and time or, at the option of the Required Lenders, a conference call) with all Lenders who choose to attend such meeting or conference call at which meeting or conference call shall be reviewed the financial results of the previous fiscal year and the financial condition of the Companies and the budget presented for the current fiscal year of the Companies.

Section 5.08        Use of Proceeds.  Use the proceeds of the Loans only for the purposes set forth in Section 3.12.

Section 5.09       Compliance with Environmental Laws; Environmental Reports.  Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, comply, and use commercially reasonable efforts to cause all lessees and other Persons occupying its properties to comply, in all respects with all Environmental Laws applicable to its operations and properties; obtain and renew all material Environmental Permits necessary for its operations and properties; and conduct any remedial action required in accordance with Environmental Laws; provided, however, that none of Borrower or any Subsidiary shall be required to undertake any remedial action required by Environmental Laws to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.

Section 5.10       Compliance Policy.  Maintain compliance policies and procedures applicable to each Company that are designed to ensure compliance with Sections 6.18 and 6.19 by each Company, which compliance policies and procedures shall include:  (a) take-down policies and procedures for websites paid for or on behalf of Embargoed Persons or otherwise in violation of any Sanctions Law; (b) policies and procedures for screening and otherwise verifying that no Company directly or indirectly accepts as a new customer, maintains a customer relationship with, nor receives any payment from, any Embargoed Person; and (c) policies and procedures for ensuring continued compliance with the Sanctions Laws, including:  (i) training all employees, directors and officers of each Company with respect to the Sanctions Laws;  (ii) policies and procedures with respect to resellers, vendors and service providers of each Company (collectively, “Third Parties”) regarding such Third Parties’ compliance with the Sanctions Laws and remedies with respect to any Third Party’s failure to comply with the Sanctions Laws;  (iii) timely and appropriately monitoring activities of each Company to ensure compliance with these policies and procedures;  (iv) investigating alleged or potential violations of the Sanctions Laws by any Person or entity within any Company;  (v) determining the conditions under which voluntary disclosures will be made to Governmental Authorities following the discovery and/or investigation of actual or potential violations of the Sanctions Laws; and  (vi) maintaining all records required under the Sanctions Laws.

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Section 5.11         Additional Collateral; Additional Guarantors.

(a)         Subject to this Section 5.11, with respect to any Property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject (but, in any event, excluding any Excluded Property) promptly (and in any event within thirty (30) Business Days after the acquisition thereof as may be extended with the consent of the Required Lenders in their sole discretion) (i) execute and deliver to the Administrative Agent, the Lenders and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent (in each case, acting at the direction of the Required Lenders) or the Required Lenders shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such Property subject to no Liens other than Permitted Liens and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Documents in accordance with all applicable Legal Requirements, including the filing of financing statements (including fixture filings and transmitting utility filings, as applicable) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent (in each case, acting at the direction of the Required Lenders) or the Required Lenders.  Borrower and the other Loan Parties shall (subject to the limitations set forth in the Security Documents) otherwise take such actions and execute and/or deliver to the Collateral Agent and the Lenders such documents as the Required Lenders or the Administrative Agent or the Collateral Agent shall reasonably require (in each case, acting at the direction of the Required Lenders) to confirm the validity, perfection and priority of the Lien of the Security Documents against such after-acquired properties.

(b)         Subject to any limitations in the Security Documents, with respect to any Person that is or becomes a Wholly Owned Subsidiary of a Loan Party after the Closing Date (except to the extent any of the following constitutes Property that is Excluded Property or is otherwise excluded as Collateral under the Security Agreement), such Person shall promptly (as may be extended with the consent of the Required Lenders in their sole discretion), deliver to the Collateral Agent and the Lenders, as and to the extent required by the Security Agreement, the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and cause such new Subsidiary (A) to execute a Joinder Agreement to become a Guarantor and a Pledgor or, in the case of a Foreign Subsidiary, if requested by the Administrative Agent or the Collateral Agent (in each case, acting at the direction of the Required Lenders) or the Required Lenders, execute a security document compatible with the laws of such Foreign Subsidiary’s jurisdiction of organization (and in form and substance reasonably satisfactory to the Required Lenders) to cause such Subsidiary to become a Guarantor and a Pledgor, and (B) to take all actions necessary or advisable in the reasonable opinion of the Administrative Agent, the Collateral Agent (in each case, acting at the direction of the Required Lenders) or the Required Lenders to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such Security Document, including the filing of financing statements (including fixture filings and transmitting utility filings, as applicable) or equivalent registrations in such jurisdictions as may be reasonably requested by the Required Lenders or by the Administrative Agent or the Collateral Agent (in each case, acting at the direction of the Required Lenders).

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(c)          With respect to any Person that is or becomes a Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within ten (10) Business Days after such Person becomes a Subsidiary as may be extended with the consent of the Required Lenders in their sole discretion) execute and deliver to the Collateral Agent (i) a counterpart to the Intercompany Note and (ii) if such Subsidiary is a Loan Party, an endorsement to the Intercompany Note (undated and endorsed in blank) in the form attached thereto, endorsed by such Subsidiary.

(d)          (A) Promptly grant to the Collateral Agent (and in any event within thirty (30) Business Days of the acquisition thereof as may be extended with the consent of the Required Lenders in their sole discretion) a security interest in and Mortgage on (i) each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon (other than any Excluded Property, as defined in the Security Agreement), individually has a Fair Market Value on the date of acquisition thereof of at least $2,500,000 and (ii) each leased Real Property of such Loan Party of a “company-controlled” data center (unless the Required Lenders otherwise consent or the applicable Loan Party shall have used all commercially reasonable efforts to obtain, but failed to obtain, such Mortgage), in each case, as additional security for the Secured Obligations (unless the subject Property is already mortgaged to a third party to the extent permitted by Section 6.02(i)). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Collateral Agent or the Required Lenders and shall constitute valid and enforceable perfected first priority Liens subject only to Permitted Liens. Such Loan Party shall promptly deliver to the Collateral Agent (and in any event within thirty (30) Business Days as may be extended with the consent of the Required Lenders in their sole discretion) a Landlord Access Agreement with respect to each Data Center Lease (unless the applicable Loan Party shall have used all commercially reasonable efforts to obtain, but failed to obtain, such Landlord Access Agreements within such 30 Business Day period). The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by applicable Legal Requirements to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent, the Collateral Agent (in each case, acting at the direction of the Required Lenders) or the Required Lenders shall reasonably require to confirm the validity, enforceability, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after acquired Real Property (including, but not limited to, a Title Policy, a Survey and environmental assessments (only with respect to such Real Property owned in fee by such Loan Party) and, if reasonably requested by the Administrative Agent (acting at the direction of the Required Lenders) or the Required Lenders, a customary local counsel opinion in respect of such Mortgage, in each case, in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent or the Required Lenders).

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(e)          Notwithstanding anything to the contrary herein or in any other Loan Document, the Loan Parties shall not have to create any Lien or perfect any Lien in any particular assets, or obtain title insurance in respect of any asset if, in the reasonable judgment of the Required Lenders evidenced in writing, determined in consultation with Borrower, the burden, cost or consequences of creating or perfecting such Liens in such assets or obtaining title insurance is excessive in relation to the benefits to be obtained therefrom by the Lenders under the Loan Documents.

Section 5.12         Security Interests; Further Assurances.

(a)          Promptly, upon the reasonable request of the Required Lenders or of the Administrative Agent or the Collateral Agent (in each case, acting at the direction of the Required Lenders), at the Companies’ expense, execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded, in an appropriate governmental office, any document or instrument supplemental to or confirmatory of the Security Documents or otherwise reasonably deemed by the Required Lenders or by the Administrative Agent or the Collateral Agent (in each case, acting at the direction of the Required Lenders) necessary or desirable for the continued validity, enforceability, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except Permitted Liens, or (subject to any limitations in the Security Documents) obtain any consents or waivers as may be necessary or appropriate in connection therewith.

(b)          Deliver or cause to be delivered to the Lenders, the Administrative Agent and the Collateral Agent from time to time such other documentation, instruments, consents, authorizations, approvals and Orders in form and substance reasonably satisfactory to the Required Lenders as required by applicable Legal Requirements or as the Administrative Agent and the Collateral Agent (in each case acting at the direction of the Required Lenders) or the Required Lenders shall reasonably deem necessary or advisable to perfect or maintain the validity, enforceability, perfection and priority of the Liens on the Collateral pursuant to the Security Documents.

(c)          Notwithstanding anything to the contrary herein or in any other Loan Document, so long as no Event of Default exists, in no event shall any Loan Party or any Subsidiary of a Loan Party be required to take any action (i) outside of the United States or Canada to perfect any Lien on (A) the Equity Interests of any Foreign Subsidiary that is an Immaterial Subsidiary or (B) a Foreign Subsidiary (or any of its assets) that is an Immaterial Subsidiary or (ii) that is not required to be taken pursuant to the terms of the Security Agreement.

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Section 5.13        Approved Budget.

(a)          The use of proceeds of Loans by the Loan Parties under this Agreement and the other Loan Documents shall be limited solely in accordance with the Approved Budget which shall be in form and substance satisfactory to the Required Lenders; provided that, no proceeds of the Loans will be used in connection with (including without limitation, to fund or prefund) any executive retention plan without the express written consent of the Required Lenders; provided further that, for the avoidance of doubt, the initial Approved Budget does not contemplate or include the funding or prefunding of any executive retention plan.  The Approved Budget shall set forth, on a weekly basis, among other things, Budgeted Cash Receipts, Budgeted Operating Disbursement Amounts, and Budgeted Restructuring Related Amounts for the 13-week period commencing with the week that includes the Closing Date and ending with the week that includes December 31, 2022, and such Approved Budget shall be approved in writing by, and be in form and substance reasonably satisfactory to, the Required Lenders (it being acknowledged and agreed that the initial Approved Budget attached to this Agreement is approved by and satisfactory to the Required Lenders and is and shall be the Approved Budget unless and until replaced in accordance with terms of this Section) and disclosed in writing to the Administrative Agent.  The Approved Budget shall be updated, modified or supplemented by Borrower from time to time in writing transmitted to the Administrative Agent and the Lenders with the written consent of and/or at the request of the Required Lenders (with a copy of such written consent or request concurrently delivered to the Administrative Agent), but in any event not less than one time in each four (4) consecutive week period, commencing with the first full week after the Closing Date, and each such updated, modified or supplemented budget shall be in form and substance satisfactory to, the Required Lenders in their reasonable discretion, and no such updated, modified or supplemented budget shall be effective if Required Lenders (or the Specified Lender Advisors at the direction of the Required Lenders) object in writing within three days of receipt (with a copy of such objection concurrently delivered to the Administrative Agent) and if no written objection is received within three days of receipt, the updated, modified or supplemented budget shall be deemed the newly Approved Budget; provided, however, that in the event the Required Lenders, on the one hand, and Borrower, on the other hand, cannot agree as to an updated, modified or supplemented budget, then at all times thereafter such then current approved Budget shall remain in effect unless and until a new Approved Budget is not objected to by the Required Lenders. Each Approved Budget delivered to the Lenders and the Administrative Agent shall be accompanied by such supporting documentation as reasonably requested by the Required Lenders.  Each Approved Budget shall be prepared in good faith based upon assumptions believed by Borrower to be reasonable.

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(b)          Borrower shall deliver to the Administrative Agent and the Lenders on or before 5:00 p.m. (New York City time) on Thursday of each week (commencing on May 14, 2020) a certificate which shall include such detail as is reasonably satisfactory to the Required Lenders, signed by a Responsible Officer of Borrower certifying that no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto, together with an Approved Budget Variance Report, each of which shall be prepared by Borrower as of the last day of the respective Variance Period or other period then most recently ended, and shall be in a form and substance satisfactory to the Required Lenders in their sole discretion.

(c)          The Administrative Agent and the Lenders (i) may assume that the Loan Parties will comply with the Approved Budget, (ii) shall have no duty to monitor such compliance and (iii) shall not be obligated to pay (directly or indirectly from the Collateral) any unpaid expenses incurred or authorized to be incurred pursuant to any Approved Budget. The line items in the Approved Budget for payment of interest, expenses and other amounts to the Administrative Agent and the Lenders are estimates only, and the Loan Parties remain obligated to pay any and all Obligations in accordance with the terms of the Loan Documents regardless of whether such amounts exceed such estimates.

(d)          Nothing in any Approved Budget shall constitute an amendment or other modification of any Loan Document or other lending limits set forth therein.

Section 5.14        Reserved.

Section 5.15        Information Regarding Collateral. Concurrently with the delivery of financial statements pursuant to Section 5.01(a), deliver to the Administrative Agent and the Collateral Agent a Perfection Certificate Supplement.

Section 5.16        Obtaining Ratings.  Use commercially reasonable efforts to cause the Loans and Borrower’s corporate credit to be rated by Standard & Poor’s Rating Services and Moody’s Investors Service Inc. (but not to maintain a specific rating).

Section 5.17        Deposit Accounts.  On or prior to 30 days after the Closing Date (or such later time to which the Required Lenders may reasonably agree), each Loan Party shall enter into an effective account control agreement (a “Deposit Account Control Agreement”) with each account bank, in form and substance reasonably satisfactory to the Required Lenders (it being agreed that any such agreement requiring the Administrative Agent to indemnify a deposit bank in its individual capacity shall not be reasonably acceptable to the Required Lenders without the Administrative Agent’s consent), with respect to each primary domestic concentration Deposit Account in which funds of any of the Loan Parties are deposited and a Securities Account Control Agreement for any Securities Account where securities are or may be maintained (including those existing as of the Closing Date, excluding Excluded Accounts).  In addition, Borrower shall enter into a Deposit Account Control Agreement or a Securities Account Control Agreement with respect to any such Deposit Account or Securities Account other than an Excluded Account which is established after the Closing Date, promptly and in any event within 30 days upon such establishment (or such longer period as the Required Lenders may agree in their discretion).

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Section 5.18        Compliance with Confirmation Order and Approved Plan.  The Loan Parties shall, and shall cause their Subsidiaries to, comply with the Confirmation Order and Approved Plan at all times required thereby.

ARTICLE VI.

NEGATIVE COVENANTS

Each Loan Party warrants, covenants and agrees with the Administrative Agent, the Collateral Agent and each Lender that, so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest and premium (if any) on each Loan, all Fees and all other expenses or amounts then due and payable under any Loan Document have been paid in full, no Loan Party will, nor will they cause or permit any of their Subsidiaries to:

Section 6.01        Indebtedness.  Incur, create, assume or permit to exist, directly or indirectly, any Indebtedness, except:

(a)          Indebtedness incurred under this Agreement and the other Loan Documents, including, for the avoidance of doubt, any Incremental Loans permitted to be incurred hereunder;

(b)          Indebtedness outstanding on the Closing Date, including (i) the Indebtedness under the Second Out Term Loan Documents in an aggregate principal amount of $225,000,000 (plus the amount of interest paid in kind and added to the principal thereof) and (ii) Indebtedness under outstanding letters of credit;

(c)          Indebtedness consisting of Hedging Obligations, in each case entered into in the ordinary course of business and not for speculative purposes or taking a “market view”; provided that if such Hedging Obligations relate to interest rates, (i) such Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (ii) the notional principal amount of such Hedging Obligations at the time incurred does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate;

(d)         Indebtedness in respect of a revolving credit facility in a maximum principal amount not to exceed $25,000,000 at any time outstanding, which maximum principal amount may be increased to include a letter of credit subfacility in an aggregate face amount not to exceed, together with the face amount under any letter of credit facility under subclause (f), $7,500,000, so long as there is no obligor under any such Indebtedness under this clause (d) that is not a Loan Party hereunder;

(e)        Indebtedness of Borrower and its Subsidiaries in respect of Purchase Money Obligations, Synthetic Lease Obligations and Capital Lease Obligations in an aggregate amount (together with any refinancing thereof permitted under clause (m)) not to exceed, at any time outstanding, $25,000,000, provided, however, that, in the case of Purchase Money Obligations, (A) such Indebtedness is incurred within 120 days after such acquisition, installation, construction, repair, replacement or improvement of such fixed or capital assets (including Equity Interests of any Person owning the applicable fixed or capital assets) by such Person and (B) the amount of such Indebtedness does not exceed 100% of the cost of such acquisition, installation, construction, repair, replacement or improvement, as the case may be;

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(f)          Indebtedness with respect to a letter of credit facility in a maximum face amount not to exceed at any time, together with the maximum face amount of any letter of credit subfacility under clause (d) above, $7,500,000;

(g)          Indebtedness in respect of bid, performance or surety bonds issued for the account of any Company in the ordinary course of business, including guarantees or obligations of any Company incurred in the ordinary course of business with respect to letters of credit supporting such bid, performance or surety obligations (in each case other than for an obligation for money borrowed), in an aggregate amount at any time outstanding not to exceed $5,000,000;

(h)          Contingent Obligations of any Company in respect of Indebtedness otherwise permitted under this Section 6.01 (other than this Section 6.01(h));

(i)          Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within ten (10) Business Days of incurrence;

(j)          Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;

(k)         Indebtedness of any Foreign Subsidiary in an aggregate outstanding principal amount for all such Foreign Subsidiaries in an amount not to exceed, at any time outstanding, $5,000,000, provided that such Indebtedness is not directly or indirectly recourse to any of the Companies or of their respective assets, other than to such Foreign Subsidiary or any Subsidiary thereof which is a Foreign Subsidiary;

(l)          Indebtedness of any Company in an aggregate principal amount for all Companies in an amount not to exceed, at any time outstanding, $10,000,000, provided that no Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred or would result from the incurrence thereof; provided further that the aggregate principal amount of Indebtedness at any time outstanding incurred pursuant to this subclause (l) by any Company that is not a Guarantor shall not exceed $5,000,000;

(m)        Indebtedness which represents a refinancing or renewal of any of the Indebtedness described in any of clauses (b), (e), (s) or (t) of this Section 6.01; provided that (A) any such refinancing Indebtedness is in an aggregate principal amount (or aggregate amount, as applicable) not greater than the aggregate principal amount (or aggregate amount, as applicable) of the Indebtedness being renewed or refinanced, plus the amount of any reasonable premiums required to be paid thereon and reasonable fees and expenses associated therewith, (B) such refinancing Indebtedness has a later or equal final maturity and longer or equal weighted average life to maturity than the Indebtedness being renewed or refinanced, (C) the covenants, events of default, subordination (including lien subordination) and other terms, conditions and provisions thereof (including any guarantees thereof or security documents in respect thereof) shall be, in the aggregate, no less favorable to the Administrative Agent, the Collateral Agent and the Lenders than those contained in the Indebtedness being renewed or refinanced, (D) no Default or Event of Default has occurred and is continuing or would result therefrom and (E) any such Indebtedness that is refinancing or renewing any Indebtedness under the Second Out Term Loan Documents and Section 6.01(s) will be subject to the Intercreditor and Collateral Agency Agreement;

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(n)          Indebtedness incurred to pay premiums for insurance policies maintained by Borrower or any Subsidiary thereof in the ordinary course of business;

(o)          Contingent Obligations with respect to bonds issued to support workers’ compensation, unemployment or other insurance or self-insurance obligations, and similar obligations, in each case incurred in the ordinary course of business;

(p)         Indebtedness constituting indemnification, deferred purchase price adjustments, earn-outs or other similar contingent payment obligations incurred in connection with any Investment or Disposition not prohibited hereunder (other than, in the case of a Disposition, guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition), so long as the amount does not exceed the gross proceeds actually received by Borrower or the applicable Subsidiary, as the case may be, in connection with any such Disposition;

(q)          Indebtedness in respect of take-or-pay obligations contained in supply agreements entered into in the ordinary course of business;

(r)          Indebtedness representing deferred compensation to directors, officers, employees, members of management and consultants of Borrower or any of its Subsidiaries incurred in the ordinary course of business;

(s)          Indebtedness consisting of any “Incremental Term Loans” as defined and incurred under the Second Out Term Loan Credit Agreement as in effect on the date hereof, incurred in an aggregate principal amount not to exceed $25,000,000 plus the amount of interest that is paid in kind and added to principal thereof minus the original principal amount of Incremental Loans incurred under Section 2.17;

(t)          Indebtedness of any Person that becomes a Subsidiary after the date hereof, or Indebtedness of any Person that is assumed by Borrower or any of its Subsidiaries in connection with the acquisition of assets by Borrower or any of its Subsidiaries, in an aggregate principal amount not to exceed $20,000,000 at any time outstanding for all such Subsidiaries; provided that such Indebtedness (i) in the case of Indebtedness of any Person that becomes a Subsidiary after the date hereof, exists at the time such Person becomes a Subsidiary, (ii) is not created in anticipation or contemplation of such Person becoming a Subsidiary and (iii) is not directly or indirectly recourse to any of the Companies or any of their respective assets, other than to the Person that becomes a Subsidiary or, in the case of an acquisition of assets, to the Person acquiring such assets;

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(u)         Indebtedness in an outstanding principal amount not to exceed $100,000,000 at any time, so long as (i) the Total Net Leverage Ratio does not exceed the Incurrence Leverage Level at the time of incurrence of such Indebtedness and immediately after giving effect thereto, (ii) such Indebtedness is not incurred prior to September 30, 2020, (iii) no Default or Event of Default exists before and immediately after the incurrence of such Indebtedness, (iv) there is no obligor in respect of such Indebtedness that is not a Loan Party and (v) Borrower shall have delivered an Officers’ Certificate to the Administrative Agent certifying as to compliance with the foregoing requirements in clauses (i)-(iv);

(v)          Finance Lease Obligations in an amount not to exceed $75,000,000; and

(w)         Indebtedness constituting Investments in compliance with Section 6.04.

For purposes of determining compliance with any dollar-denominated restriction on the incurrence of Indebtedness, the dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing.

Section 6.02        Liens.  Create, incur, assume or permit to exist, directly or indirectly, any Lien on any Property now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, except the following (collectively, the “Permitted Liens”):

(a)        inchoate Liens for amounts required to be remitted but not yet due with respect to Canadian Pension Plans or for taxes, assessments or governmental charges or levies not yet due and payable or delinquent and Liens for taxes, assessments or governmental charges or levies, which are being contested in good faith by appropriate proceedings promptly initiated and diligently conducted for which adequate reserves have been established in accordance with GAAP, which proceedings (or Orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the Property subject to any such Lien;

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(b)        Liens in respect of Property of any Company imposed by law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business, and (i) which do not in the aggregate materially detract from the value of the Property of the Companies, taken as a whole, or the Loan Parties, taken as a whole, and do not materially impair the use thereof in the operation of the business of the Companies, taken as a whole, or the Loan Parties, taken as a whole, and (ii) which, if they secure obligations that are then due and unpaid, are being contested in good faith by appropriate proceedings promptly initiated and diligently conducted for which adequate reserves have been established in accordance with GAAP, which proceedings (or Orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the Property subject to any such Lien;

(c)          any Lien in existence on the Closing Date (other than Liens securing the obligations under the Second Out Term Loan Documents) including the cash collateralization of letters of credit existing on the Closing Date and any Lien granted as a replacement or substitute therefor; provided that any such replacement or substitute Lien (i) except as permitted by Section 6.01(m)(A), does not secure an aggregate amount of Indebtedness or other obligations, if any, greater than that secured on the Closing Date (minus the aggregate amount of any permanent repayments and prepayments thereof since the Closing Date but only to the extent that such repayments and prepayments by their terms cannot be reborrowed or redrawn and do not occur in connection with a refinancing of all or a portion of such Indebtedness) and (ii) does not encumber any Property other than the Property subject thereto on the Closing Date (any such Lien, an “Existing Lien”);

(d)        easements, rights-of-way, restrictions (including zoning restrictions), covenants, licenses, encroachments, protrusions, servitudes and other similar charges or encumbrances, and minor title deficiencies, in each case, on or with respect to any Real Property, whether now or hereafter in existence, not (i) securing Indebtedness, (ii) individually or in the aggregate materially impairing the value or marketability of such Real Property or (iii) individually or in the aggregate materially interfering with the ordinary conduct of the business of the Companies at or otherwise with respect to such Real Property;

(e)          Liens arising out of judgments, attachments or awards not resulting in an Event of Default and in respect of which such Company shall in good faith be diligently prosecuting an appeal or proceedings for review in respect of which there shall be secured a subsisting stay of execution pending such appeal or proceedings;

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(f)          Liens (other than any Lien imposed by ERISA or in respect of any Foreign Plan or, except as provided in clause (a) above, any Canadian Pension Plan) (x) imposed by law or deposits made in connection therewith in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security legislation, (y) incurred in the ordinary course of business to secure the performance of tenders, statutory obligations (other than excise taxes), surety, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (in each case, exclusive of obligations for the payment of Indebtedness) or (z) arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers; provided that (i) with respect to clauses (x), (y) and (z) of this Section 6.02(f), such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings (or Orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the Property subject to any such Lien, and (ii) to the extent such Liens are not imposed by Legal Requirements, such Liens shall in no event encumber any Property other than cash and Cash Equivalents;

(g)         Leases, subleases or licenses of the properties of any Company, in each case entered into in the ordinary course of such Company’s business so long as such Leases do not, individually or in the aggregate, (i) interfere in any material respect with the ordinary conduct of the business of any Company or (ii) materially impair the use (for its intended purposes) or the value of the Property subject thereto;

(h)          Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Company in the ordinary course of business;

(i)          Liens securing Indebtedness incurred pursuant to Section 6.01(e) (or any refinancing or renewal thereof permitted under Section 6.01(m)), provided that (i) any such Liens attach only to the Property being financed pursuant to such Indebtedness, (ii) do not encumber any other Property of any Company, other than accessions to such property and the proceeds and products thereof, or any lease of such property (including accessions thereto) and the proceeds and products thereof, and (iii) the principal amount of the Indebtedness secured by any such Lien shall not exceed the lesser of the Fair Market Value or the cost of the Property secured by such Lien; provided, further, that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender;

(j)          Liens securing the obligations under the Second Out Term Loan Documents (including Indebtedness incurred under Section 6.01(s)) so long as such obligations and liens are subject to the Intercreditor and Collateral Agency Agreement, and any liens securing any refinancing thereof pursuant to Section 6.01(m), so long as such refinancing and liens are subject to the Intercreditor and Collateral Agency Agreement;

(k)         bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by any Company, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to Cash Management Services; provided that, unless such Liens are non-consensual and arise by operation of applicable Legal Requirements, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;

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(l)          Liens existing on Property not owned by Borrower but to which Borrower holds a leasehold interest and such Liens attach to the fee interest, and/or at the time of its acquisition or existing on Property of a Person at the time such Person is acquired or merged with or into or amalgamated or consolidated with any Company to the extent permitted hereunder; provided that such Liens (i) do not extend to Property not subject to such Liens at the time of such acquisition, merger, consolidation or amalgamation (other than improvements thereon, replacements of such property and additions and accessions thereto, proceeds and products thereof and, in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender), (ii) are not created in anticipation or contemplation of such acquisition, merger, consolidation or amalgamation and (iii) do not secure Indebtedness in an aggregate principal amount exceeding $7,500,000 at any time outstanding;

(m)         Liens granted pursuant to the Security Documents to secure the Secured Obligations;

(n)          licenses of Intellectual Property granted by any Company in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of the Companies;

(o)          the filing of UCC or PPSA financing statements (or equivalent) solely as a precautionary measure in connection with operating leases or consignment of goods;

(p)          Liens of a collecting bank arising in the ordinary course of business under Section 4-208 of the UCC (or any equivalent provision of the UCC or PPSA) covering only the items being collected upon;

(q)          Liens granted by a Company in favor of a Loan Party in respect of Indebtedness owed by such Company to such Loan Party; provided that such Indebtedness is (i) evidenced by the Intercompany Note and (ii) pledged by such Loan Party as Collateral pursuant to the Security Documents;

(r)          Liens on money or property constituting proceeds of any Indebtedness incurred to fund any acquisition of assets or Equity Interests, to the extent that such proceeds are held in escrow pending the closing of such acquisition, so long as such Indebtedness would be permitted by Section 6.01;

(s)          Liens solely on good faith earnest money deposits made in connection with any letter of intent or purchase agreement not prohibited hereunder;

(t)          Liens securing Indebtedness under Sections 6.01(d) and (f); provided, that such Liens may be senior to the Liens securing the Secured Obligations pursuant to an intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent;

(u)          setoff rights or banker’s liens for account charges and fees against funds on deposit with such banks;

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(v)          Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

(w)        Liens that are junior in priority to the Liens securing the Obligations, securing Indebtedness incurred under Section 6.01(t) in an aggregate outstanding principal amount not to exceed $50,0000,000, so long as (i) the Total Net Leverage Ratio does not exceed the Incurrence Leverage Level, (ii) such Indebtedness is not incurred prior to September 30, 2020, (iii) no Default or Event of Default exists before and immediately after the incurrence of such Indebtedness, (iv) there is no obligor in respect of such Indebtedness that is not a Loan Party, (v) the Administrative Agent, the Loan Parties and the holders of such Indebtedness (or the Agent authorized to act for such holders) have entered into an intercreditor agreement in form and substance reasonably satisfactory to the Required Lenders and (vi) Borrower shall have delivered an Officers’ Certificate to the Administrative Agent certifying as to compliance with the foregoing requirements in clauses (i)-(iv);

(x)          Liens on insurance policies and the proceeds thereof securing insurance premium financing not prohibited hereunder;

(y)          Liens securing Indebtedness incurred pursuant to Section 6.01(l) in an aggregate principal amount at any time outstanding not to exceed $5,000,000;

(z)          other Liens (other than Liens securing Indebtedness incurred pursuant to Section 6.01(l)) with respect to the Property or assets of any Company as to which the aggregate amount at any time outstanding of all obligations secured thereby does not exceed $10,000,000;

(aa)        Liens (i) on the fee interest in Real Property leased by Borrower or any Subsidiary and (ii) on or consisting of any deposits with respect to any property leased by Borrower or any Subsidiary; and

(bb)       Liens that are contractual rights of setoff relating to (i) pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Borrower and its Subsidiaries, or (ii) purchase orders and other agreements entered into with customers of Borrower or any Subsidiary thereof in the ordinary course of business.

Any reference in any of the Loan Documents to a Permitted Lien is not intended to subordinate or postpone, and shall not be interpreted as subordinating or postponing, or as any agreement to subordinate or postpone, any Lien created by any of the Loan Documents to any Permitted Lien.

Section 6.03        Reserved.

Section 6.04        Investments, Loans and Advances.  Directly or indirectly, lend money or credit (by way of guarantee, assumption of debt or otherwise) or make advances to any Person, or purchase or acquire any stock, bonds, notes, debentures or other obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract (all of the foregoing, collectively, “Investments”), except that the following shall be permitted:

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(a)          Investments outstanding on the Closing Date;

(b)          the Companies may (i) acquire and hold accounts receivables owing to any of them if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms, (ii) invest in, acquire and hold cash and Cash Equivalents, (iii) endorse negotiable instruments held for collection in the ordinary course of business or (iv) make lease, utility and other similar deposits in the ordinary course of business;

(c)          Hedging Obligations permitted pursuant to Section 6.01(c);

(d)         loans and advances to directors, employees and officers of Borrower and the Subsidiaries for bona fide business purposes, in an aggregate amount not to exceed $500,000 at any time outstanding (calculated without regard to write-downs or write-offs thereof); provided that no loans in violation of Section 402 of the Sarbanes-Oxley Act shall be permitted hereunder;

(e)          Investments by (i) Borrower in any Guarantor, (ii) any Company in Borrower or any Guarantor, and (iii) a Subsidiary of Borrower that is not a Guarantor in any other Subsidiary of Borrower that is not a Guarantor; provided that any Investment in the form of a loan or advance shall be evidenced by the Intercompany Note and, in the case of a loan or advance by a Loan Party, pledged by such Loan Party as Collateral pursuant to the Security Documents;

(f)         Investments in securities of trade creditors or customers in the ordinary course of business that are received in settlement of bona fide disputes or pursuant to any plan of reorganization or liquidation or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers;

(g)          Investments consisting of Borrower’s receipt of cash receipts on behalf of Foreign Subsidiaries and the provision of cash disbursements to Foreign Subsidiaries, in each case, in the ordinary course of business consistent with past practice;

(h)          Investments of any Person that becomes a Subsidiary on or after the date hereof; provided that (i) such Investments exist at the time such Person is acquired, (ii) such Investments are not made in anticipation or contemplation of such Person becoming a Subsidiary, and (iii) such Investments are not directly or indirectly recourse to any of the Companies or any of their respective assets, other than to the Person that becomes a Subsidiary;

(i)           other Investments in an aggregate amount not to exceed $12,500,000 at any time outstanding; provided, however, that Investments in any Subsidiary that is not a Loan Party shall not exceed $1,000,000 at any time outstanding;

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(j)           Investments consisting of prepayments to suppliers or extensions of trade credit, in each case in the ordinary course of business;

(k)          advances of payroll to employees in the ordinary course of business; and

(l)           payments of expenses of any Employee Benefit Plan in anticipation of reimbursement of said expenses by the Employee Benefit Plan.

For purposes of covenant compliance, the amount of any Investment at any time shall be the amount actually invested (measured as of the time made), without adjustment for subsequent changes in the value of such Investment, net of all returns on such Investment up to the original amount of such Investment.

Section 6.05        Mergers and Consolidations.  Wind up, liquidate or dissolve its affairs or enter into any transaction of merger, consolidation or amalgamation with respect to any of the Subsidiaries, except that:

(a)          any solvent Company (other than Borrower) may merge, consolidate or amalgamate with or into Borrower or any Guarantor (as long as Borrower or a Guarantor is the surviving Person in such merger, consolidation or amalgamation and, in the case of any Guarantor, remains a Wholly Owned Subsidiary of Borrower); provided that the Lien on and security interest in such Property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.11 or 5.12, as applicable; and

(b)          any Subsidiary of Borrower that is not a Guarantor may merge, consolidate or amalgamate with or into any other Subsidiary of Borrower that is not a Guarantor.

Section 6.06        Asset Sales.  Effect any Disposition of any Property, except that the following shall be permitted:

(a)         Dispositions of obsolete, worn out, surplus or damaged Property by Borrower or any of its Subsidiaries in the ordinary course of business that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful or used in the conduct of the business of the Companies taken as a whole;

(b)          if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, the liquidation or dissolution or change in form of entity of any Subsidiary if Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of Borrower, is not disadvantageous to the Lenders and in connection with any such liquidation, dissolution or change in form, Borrower transfers any assets of such Subsidiary to a Loan Party and complies with the requirements of Section 5.11 and Section 5.12, if any;

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(c)          (i) leases and subleases (and licenses and sublicenses) of real or personal Property and (ii) any license, sublicense or other grant of rights in or to any trademark, copyright, patent or other Intellectual Property, in each case of subclauses (i) and (ii), in the ordinary course of business and in accordance with the applicable Security Documents;

(d)          Investments in compliance with Section 6.04;

(e)          mergers, consolidations and amalgamations in compliance with Section 6.05;

(f)          Dividends in compliance with Section 6.08;

(g)          sales of inventory and equipment held for sale in the ordinary course of business and Dispositions of cash and Cash Equivalents in the ordinary course of business;

(h)          any Disposition of Property that constitutes a Casualty Event;

(i)          any Disposition of Property by any Subsidiary of Borrower to Borrower or any of its Subsidiaries; provided that if the transferor of such Property is a Guarantor, the transferee thereof must be Borrower or a Guarantor;

(j)          the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any Intellectual Property that is not material to the business of Borrower and its Subsidiaries, taken as a whole;

(k)          Dispositions consisting of Liens permitted by Section 6.02;

(l)          the Specified Dispositions;

(m)          Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

(n)          the unwinding of any Hedging Agreement; and

(o)        the sale or other disposition by Borrower or a Subsidiary of shares of capital stock of any of its Foreign Subsidiaries in order to qualify members of the governing body of such Foreign Subsidiary if and to the extent required by applicable Legal Requirements.

Section 6.07        [Reserved].

Section 6.08         Dividends.  Declare or pay, directly or indirectly, any Dividends with respect to any Company (including pursuant to any Synthetic Purchase Agreement), except that the following shall be permitted:

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(a)          (i) Dividends by any Company that is a Wholly Owned Subsidiary of Borrower to Borrower or any Guarantor that is a Wholly Owned Subsidiary of Borrower shall be permitted and (ii) Dividends by any Company that is a non-Wholly Owned Subsidiary of Borrower to its equity holders generally, so long as Borrower or its respective Subsidiary which owns the capital stock in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon the relative holding of the capital stock in the Subsidiary paying such Dividends);

(b)          so long as no Default or Event of Default exists and is continuing, additional Dividends in an aggregate amount not to exceed $500,000 during the life of this Agreement; and

(c)          repurchases of Qualified Capital Stock of Borrower deemed to occur upon exercise of stock options or warrants or similar rights if such Qualified Capital Stock represents a portion of the exercise price of such options or warrants or similar rights (as long as Borrower and its Subsidiaries make no payment in connection therewith that is not otherwise permitted hereunder).

Section 6.09        Transactions with Affiliates.  Enter into, directly or indirectly, any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate of any Company (other than (x) between or among the Loan Parties, (y) between and among the Companies that are not Loan Parties or (z) between and among the Companies so long as such transactions do not exceed $5,000,000 in the aggregate to the Loan Parties during the life of this Agreement), other than on terms and conditions, taken as a whole, at least as favorable to such Company as would reasonably be obtained by such Company at that time in a comparable arm’s-length transaction with a Person other than an Affiliate, except that the following shall be permitted:

(a)          Dividends permitted by Section 6.08;

(b)          Investments permitted by Sections 6.04(d), (e) and (g);

(c)          reasonable and customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification arrangements, or severance arrangements, in each case approved by the Board of Directors of the applicable Company; and

(d)          transactions between Borrower or any Subsidiaries and any Person that would constitute a transaction with an Affiliate solely because a director of such Person is also a director of Borrower; provided, however, that such director abstains from voting as a director of Borrower on any matter involving such other Person.

Section 6.10        Maximum Total Net Leverage Ratio.  Permit the Total Net Leverage Ratio, as of the last day of any Test Period set forth in the table below, to exceed the ratio set forth opposite such Test Period in the table below:

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Test Period End Date	Total Net Leverage Ratio
September 30, 2020 and thereafter	applicable Projected Total Net Leverage Ratio for applicable Test Period End Date

Section 6.11         Prepayments of Other Indebtedness; Modifications of Organizational Documents, Acquisition and Certain Other Documents, etc.  Directly or indirectly:

(a)        (including pursuant to any Synthetic Purchase Agreement) make or offer to make (or give any notice in respect thereof) any voluntary or optional payment, any mandatory prepayment or prepayment on or redemption, retirement, defeasance, or acquisition for value of, or any prepayment or redemption as a result of any asset sale, change of control or similar event of, unsecured Indebtedness, Indebtedness secured by a Lien that is junior to the Liens securing the Obligations, Indebtedness under the Second Out Term Loan Documents, any Indebtedness outstanding under any Subordinated Indebtedness or any Disqualified Capital Stock; provided that so long as no Default or Event of Default exists and is continuing, Borrower and its Subsidiaries may, after September 30, 2020, make payments of unsecured Indebtedness, Indebtedness secured by a Lien that is junior to the Liens securing the Obligations, Indebtedness under the Second Out Term Loan Documents and Subordinated Indebtedness in an aggregate amount not to exceed $10,000,000 so long as the Total Net Leverage Ratio does not exceed 2.75:1.00 at the time of such prepayment after giving effect thereto; provided that Borrower shall have delivered an Officers’ Certificate to the Administrative Agent certifying as to compliance with the foregoing;

(b)        (i) waive, amend, supplement or modify, or permit the waiver, amendment, supplementation or modification of, any provision of any Indebtedness in the outstanding principal amount of $10,000,000 or more (other than any Second Out Term Loan Documents) or Disqualified Capital Stock in any manner that is, or could reasonably be expected to be, adverse in any material respect to the interests of any Agent or Lender, and (ii) waive, amend, supplement or modify or permit the waiver, amendment, supplementation or modification of any Second Out Term Loan Documents (other than to the extent permitted in the Intercreditor and Collateral Agency Agreement) or Disqualified Capital Stock in any manner that is, or could reasonably be expected to be, adverse in any material respect to the interests of any Agent or Lender; or

(c)          except as otherwise permitted or required by the Security Agreement, terminate, amend, waive, modify (including electing to treat any Pledged Interests (as defined in the Security Agreement) as a “security” under Section 8-103 of the UCC) or change any of its Organizational Documents (including by the filing or modification of any certificate of designation) or any agreement to which it is a party with respect to its Equity Interests (including any stockholders’ agreement), or enter into any new agreement with respect to its Equity Interests, other than any such terminations, amendments, waivers, modifications or changes or such new agreements which are not, and could not reasonably be expected to be, adverse in any material respect to the interests of any Agent or the Lenders.

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Section 6.12       Limitation on Certain Restrictions on Subsidiaries.  Directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance, restriction or condition on the ability of any Subsidiary to (i) pay Dividends or make any other distributions on its Equity Interests or any other interest or participation in its profits owned by any Company, or pay any Indebtedness owed to any Company, (ii) make loans or advances to any Company or (iii) transfer any of its properties to any Company, except for such encumbrances, restrictions or conditions existing under or by reason of:

(a)          applicable mandatory Legal Requirements;

(b)          this Agreement and the other Loan Documents and the Second Out Term Loan Credit Agreement and the other Second Out Term Loan Documents;

(c)          customary provisions restricting subletting or assignment of any lease governing a leasehold interest of a Subsidiary;

(d)          customary provisions restricting assignment of any agreement entered into by a Subsidiary in the ordinary course of business;

(e)          customary restrictions and conditions contained in any agreement relating to the sale or other Disposition of any Property pending the consummation of such sale; provided that (i) such restrictions and conditions apply only to the Property to be sold, and (ii) such sale or other Disposition is permitted hereunder;

(f)          any limitation pursuant to an agreement as in effect on the Closing Date; provided that such agreement was not entered into in contemplation of the Closing Date;

(g)        any agreement in effect at the time any Subsidiary becomes a Subsidiary of Borrower or any agreement assumed by Borrower or a Subsidiary thereof in connection with an acquisition of assets by Borrower or such Subsidiary that is not prohibited hereunder; provided that such agreement was not entered into in contemplation of such Person becoming a Subsidiary of Borrower or in contemplation of such acquisition and, in the case of a Subsidiary becoming a Subsidiary, the restriction or condition does not apply to Borrower or any other Subsidiary;

(h)          customary limitations on the disposition or distribution of assets or property (including, without limitation, Equity Interests) in joint venture agreements, asset sale agreements, options, sale-leaseback agreements, stock sale agreements, lease agreements, licenses and other similar agreements, which limitation is applicable only to the assets that are the subject of such agreements;

(i)           restrictions contained in Capital Leases or agreements relating to Purchase Money Obligations, which restrictions are applicable only to the property so purchased or leased;

(j)          customary net worth provisions contained in real property leases, subleases, licenses or permits entered into by Borrower or any of its Subsidiaries, so long as such net worth provisions would not reasonably be expected to impair materially the ability of the Loan Parties to meet their ongoing obligations under the Loan Documents;

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(k)          provisions in the agreements in respect of the Indebtedness described in Sections 6.01(d) and (f);

(l)          customary subordination of subrogation, contribution and similar claims contained in guaranties permitted hereunder;

(m)        subordination of intercompany obligations, to the extent required by this Agreement or other Indebtedness permitted by Section 6.01;

(n)         customary restrictions in agreements evidencing, governing, guaranteeing or securing Indebtedness permitted under Section 6.01 that is incurred or assumed by Subsidiaries that are not Loan Parties to the extent such restrictions or conditions are no more restrictive in any material respect than the restrictions and conditions in the Loan Documents; or

(o)        any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (a) through (n) above, provided, however that the applicable provisions of such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing are not, taken as a whole, materially more restrictive than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.

Section 6.13        Limitation on Issuance of Capital Stock.

(a)          With respect to Borrower, issue any Equity Interest that is Disqualified Capital Stock.

(b)          With respect to any Subsidiary of Borrower, issue any Equity Interest (including by way of sales of treasury stock) or any options or warrants to purchase, or securities convertible into, any Equity Interest.

Section 6.14         Business.  Engage (directly or indirectly) in any businesses other than those businesses in which Borrower and its Subsidiaries are engaged on the Closing Date substantially as conducted on the Closing Date.

Section 6.15        Limitation on Accounting Changes.  Make or permit, any change in accounting policies or reporting practices, without the consent of the Required Lenders, which consent shall not be unreasonably withheld, conditioned or delayed, except (a) changes that are required or permitted by GAAP or (b) to implement IFRS (in each case of clauses (a) and (b), subject in each case to the provisions of Section 1.04).

Section 6.16        Fiscal Periods.  Change its fiscal year-end and fiscal quarter-ends to dates other than December 31 and the last day of each March, June, September and December, respectively.

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Section 6.17        No Further Negative Pledge.  Enter into any agreement, instrument, deed or lease which prohibits or limits the ability of any Company to create, incur, assume or suffer to exist any Lien upon any of its properties or revenues to secure the Secured Obligations, whether now owned or hereafter acquired, or which requires the grant of any Lien for an obligation if security is granted for another obligation, except the following:  (a) this Agreement and the other Loan Documents; (b) covenants in documents creating Liens permitted by Section 6.02 prohibiting further Liens on the properties encumbered thereby; (c) any prohibition or limitation that (i) exists pursuant to applicable Legal Requirements, or (ii) consists of customary restrictions and conditions contained in any agreement relating to the Disposition of any Property pending the consummation of such Disposition; provided that (1) such restrictions apply only to the Property to be sold and such sale is permitted hereunder, and (2) such Disposition is permitted hereunder, or (iii) restricts subletting or assignment of any lease governing a leasehold interest of Borrower or any of its Subsidiaries; (d) the Second Out Term Loan Documents, (e) any agreements governing Indebtedness described in Sections 6.01(d) and (f) and (e) agreements, instruments, deeds or leases described in clauses (a) through (n) of Section 6.12.

Section 6.18        Anti-Terrorism Law; Anti-Money Laundering.

(a)          Directly or indirectly, (i) conduct any business or engage in making or receiving any contribution of funds, goods or services to or for the benefit of any Person described in Section 3.21 or any Sanctioned Country, (ii) deal in, or otherwise engage in any transaction relating to, any Property or interests in Property blocked pursuant to the Executive Order or any other Anti-Terrorism Law, Canadian Anti-Terrorism Law or Sanctions Law, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, Canadian Anti-Terrorism Law or Sanctions Law (and the Loan Parties shall deliver to the Lenders any certification or other evidence requested from time to time by any Lender in its reasonable discretion, confirming the Companies’ compliance with this Section 6.18).

(b)          Cause or permit any of the funds of such Loan Party that are used to repay the Obligations to be derived from any unlawful activity with the result that the Credit Events would be in violation of Legal Requirements.

Section 6.19       Embargoed Person.  Directly or indirectly (a) cause or permit any of the funds or properties of the Loan Parties that are used to repay the Loans or other Obligations to constitute Property of, or be beneficially owned directly or indirectly by, any Embargoed Person, (b) cause or permit any Embargoed Person to have any direct or indirect interest, of any nature whatsoever in the Loan Parties, with the result that the investment in the Loan Parties (whether directly or indirectly) is prohibited by applicable Legal Requirements or the Credit Events are in violation of applicable Legal Requirements, or (c) cause or permit any Company to conduct any business or engage in any action that is in violation of any Sanctions Law or any Canadian Sanctions.

Section 6.20       Compliance with Canadian Pension Plans.  Directly or indirectly (a) establish any new defined benefit Canadian Pension Plan, (b) permit its unfunded pension fund and other employee benefit plan obligation and liabilities to remain unfunded other than in accordance with applicable law, or (c) terminate or wind-up any defined benefit Canadian Pension Plan, except as otherwise permitted under Section 5.06(b).

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Section 6.21        Orders. Notwithstanding anything to the contrary herein, use any portion or proceeds of the Loans or the Collateral, or disbursements set forth in the Approved Budget, for payments or purposes that would violate the terms of the Confirmation Order.

ARTICLE VII.

GUARANTEE

Section 7.01       The Guarantee.  The Guarantors hereby, jointly and severally, guarantee, as primary obligors and not as sureties, to each Secured Party and their respective successors and assigns, the prompt payment and performance in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of, and premium and interest (including any interest, fees, costs or charges that would accrue but for the provisions of the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code) on the Loans made by the Lenders to, and the Notes held by each Lender of, Borrower, and all other Secured Obligations from time to time owing to the Secured Parties by any Loan Party in each case strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”).  The Guarantors hereby jointly and severally agree that if Borrower or any other Guarantor(s) shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.

Section 7.02      Obligations Unconditional.  The obligations of the Guarantors under Section 7.01 shall constitute a guaranty of payment and performance and not of collection and to the fullest extent permitted by applicable Legal Requirements, are primary, absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations under this Agreement, the Notes, if any, or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Guarantor (except for payment in full of the Guaranteed Obligations with respect to the Secured Obligations set forth in clauses (a) and (b) of the definition thereof).  Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantors hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above:

(a)          any time or from time to time, without notice to the Guarantors, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;

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(b)          any of the acts mentioned in any of the provisions of this Agreement, the other Loan Documents or the Notes, if any, or any other agreement or instrument referred to herein or therein shall be done or omitted;

(c)          the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be amended in any respect, or any right under the Loan Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;

(d)          any Lien or security interest granted to, or in favor of, any Secured Party as security for any of the Guaranteed Obligations shall fail to be valid, perfected or to have the priority required under the Loan Documents; or

(e)          the release of any other Guarantor pursuant to Section 7.10.

(f)         The Guarantors hereby expressly waive, to the fullest extent permitted by applicable Legal Requirements, diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that any Secured Party exhaust any right, power or remedy or proceed against Borrower or any Guarantor under this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations.  The Guarantors waive, to the fullest extent permitted by applicable Legal Requirements, any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guaranteed Obligations, notice of acceleration, notice of intent to accelerate and notice of or proof of reliance by any Secured Party upon this Guarantee or acceptance of this Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between Borrower and the Secured Parties shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee.  The Guarantors waive, to the fullest extent permitted by applicable Legal Requirements, any right to which it may be entitled to be released from its obligations hereunder pursuant to Article 2362 of the Civil Code of Quebec, and any rights to the benefits of Article 2363 of the Civil Code of Quebec, such that its obligations created herein are not attached to the performance of any special duties.  This Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment and performance without regard to any right of offset with respect to the Guaranteed Obligations at any time or from time to time held by the Secured Parties, and the obligations and liabilities of the Guarantors hereunder shall be primary and shall not be conditioned or contingent upon the pursuit by the Secured Parties or any other Person at any time of any right or remedy against Borrower or against any other Person which may be or become liable in respect of all or any part of the Guaranteed Obligations or against any collateral security or guarantee therefor or right of offset with respect thereto.  The Guarantors hereby expressly waive and renounce to the benefits of division and discussion and Article 2353 of the Civil Code of Quebec.  This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and their respective successors and assigns, and shall inure to the benefit of the Secured Parties, and their respective successors and assigns, notwithstanding that from time to time during the term of this Agreement there may be no Guaranteed Obligations outstanding.

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Section 7.03        Reinstatement.  The obligations of the Guarantors under this Article VII shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of Borrower or other Loan Party in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.

Section 7.04        Subrogation; Subordination.  Each Guarantor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations (other than (i) contingent reimbursement and indemnification obligations that are not then due and payable and (ii) Guaranteed Obligations constituting Secured Obligations of the types specified in clause (b) and (c) of the definition of Secured Obligations), and the expiration and termination of the Commitments of the Lenders under this Agreement it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its Guarantee in this Article VII, whether by subrogation or otherwise, against Borrower or any other Guarantor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.  Any Indebtedness of any Loan Party permitted pursuant to Section 6.04(e) shall be subordinated to such Loan Party’s Secured Obligations in the manner set forth in the Intercompany Note evidencing such Indebtedness.

Section 7.05        Remedies.  The Guarantors jointly and severally agree that, as between the Guarantors and the Lenders, the Obligations of Borrower under this Agreement and other Loan Documents may be declared to be forthwith due and payable as provided in Article VIII (and shall be deemed to have become automatically due and payable in the circumstances provided in Article VIII) for purposes of Section 7.01, notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by Borrower) shall forthwith become due and payable by the Guarantors for purposes of Section 7.01.

Section 7.06       Instrument for the Payment of Money.  Each Guarantor hereby acknowledges that the Guarantee in this Article VII constitutes an instrument for the payment of money, and consents and agrees that any Lender or Agent, at its sole option, in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.

Section 7.07        Continuing Guarantee.  The Guarantee in this Article VII is a continuing guarantee of payment and performance, and shall apply to all Guaranteed Obligations whenever arising.

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Section 7.08       General Limitation on Guarantee Obligations.  In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency or reorganization law or other Legal Requirement affecting the rights of creditors generally, if the obligations of any Guarantor under Section 7.01 would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 7.01, then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Guarantor, any other Loan Party or any other Person, be automatically limited and reduced to the highest amount (after giving effect to the rights of subrogation and contribution established in Sections 7.04 and 7.10, respectively) that is valid and enforceable, not void or voidable and not subordinated to the claims of other creditors as determined in such action or proceeding.

Section 7.09        Right of Contribution.  Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment.  Each Guarantor’s right of contribution shall be subject to the terms and conditions of Section 7.04.  The provisions of this Section 7.10 shall in no respect limit the obligations and liabilities of any Guarantor to the Administrative Agent and the Lenders, and each Guarantor shall remain liable to the Administrative Agent and the Lenders for the full amount guaranteed by such Guarantor hereunder.

Section 7.10        Release of Guarantors.  If, in compliance with the terms and provisions of the Loan Documents, (i) all of the Equity Interests or (ii) all or substantially all of the Property of any Guarantor are sold or otherwise transferred (a “Transferred Guarantor”) to a Person or Persons (other than any Company or any Affiliate thereof), such Transferred Guarantor shall, upon the consummation of such sale or transfer, be automatically released from its Obligations under this Agreement (including under Section 10.03) and its Obligations to pledge and grant any Collateral owned by it pursuant to any Security Document and, in the case of the sale or other disposition of all of the Equity Interests of the Transferred Guarantor, the pledge of such Equity Interests to the Collateral Agent pursuant to the Security Documents shall be automatically released, and, so long as Borrower shall have previously provided the Collateral Agent and the Administrative Agent such certifications or documents the Collateral Agent and/or the Administrative Agent as shall reasonably request, the Collateral Agent shall take, and the Lenders hereby irrevocably authorize the Collateral Agent to take, such actions as are necessary to effect each release described in this Section 7.10 in accordance with the relevant provisions of the Security Documents, all at the sole cost and expense of Borrower.

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ARTICLE VIII.

EVENTS OF DEFAULT

Section 8.01        Events of Default.  Upon the occurrence and during the continuance of any of the following events (each, an “Event of Default”):

(a)          default shall be made in the payment of any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for repayment thereof or by acceleration thereof or otherwise

(b)          default shall be made in the payment of any interest on any Loan or any Fee or any other amount (other than an amount referred to in paragraph (a) above) due under any Loan Document, when and as the same shall become due and payable, whether at the due date thereof (including an Interest Payment Date) or at a date fixed for prepayment (whether optional or mandatory) or by acceleration or demand thereof or otherwise, and such default shall continue unremedied for a period of three (3) Business Days;

(c)          any representation or warranty made or deemed made in or in connection with any Loan Document or the borrowings of Loans, or any representation, warranty, statement or information contained in any report, certificate, financial statement or other instrument furnished in connection with or pursuant to any Loan Document, shall prove to have been false or misleading in any material respect (or in any respect, in the case of any representation or warranty that is (x) qualified as to “materiality”, “Material Adverse Effect” or similar language or (y) made pursuant to Section 3.21) when so made, deemed made or furnished;

(d)          default shall be made in the due observance or performance by any Company of any covenant, condition or agreement contained in Section 5.01, 5.02, 5.03(a), 5.08, 5.10, 5.11, 5.13, 5.17, 5.18 or in Article VI;

(e)          default shall be made in the due observance or performance by any Company of any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraphs (a), (b) or (d) immediately above) and such default shall continue unremedied or shall not be waived for a period of 20 days (or three (3) Business Days in the case of the Fee Letter) after the occurrence thereof;

(f)         any Company shall (i) fail to pay any principal or interest, regardless of amount, due in respect of the Second Out Term Loan Facility or any other Indebtedness (the “Other Indebtedness”) (other than the Obligations), when and as the same shall become due and payable beyond any applicable grace period, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing the Second Out Term Loan Facility or such Other Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee or other representative on its or their behalf (with or without the giving of notice, the lapse of time or both) to cause, such Indebtedness to become due before its stated maturity or become subject to a mandatory offer to purchase by the obligor; provided that with respect to any Other Indebtedness it shall not constitute an Event of Default pursuant to this paragraph (f) unless the aggregate amount of all such Other Indebtedness referred to in clauses (i) and (ii) exceeds $10,000,000 at any one time;

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(g)         an Insolvency Proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of any Company or any of their respective Subsidiaries (other than an Immaterial Subsidiary) or of a substantial part of the Property of any Company or any of their respective Subsidiaries (other than an Immaterial Subsidiary), under any Insolvency Laws, (ii) the appointment of a receiver, receiver and manager, interim receiver, trustee, custodian, sequestrator, conservator, liquidator, rehabilitator or similar official for any Company (other than an Immaterial Subsidiary) or for a substantial part of the Property of any Company (other than an Immaterial Subsidiary), or (iii) the winding-up or liquidation of any Company (other than an Immaterial Subsidiary); and such proceeding or petition shall continue undismissed for sixty (60) days or an Order approving or ordering any of the foregoing shall be entered;

(h)         any Company or any of their respective Subsidiaries (other than an Immaterial Subsidiary) shall (i) voluntarily commence any proceeding or file any petition seeking relief any Insolvency Laws, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any Insolvency Proceeding or the filing of any petition described in clause (g) above, (iii) apply for or consent to the appointment of a receiver, receiver and manager, interim receiver, trustee, custodian, sequestrator, conservator, liquidator, rehabilitator or similar official for any Company (other than an Immaterial Subsidiary) or for a substantial part of the Property of any Company (other than an Immaterial Subsidiary), (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due, or (vii) wind up or liquidate;

(i)          one or more Orders for the payment of money in an aggregate amount in excess of $10,000,000 (to the extent not covered by insurance from an unaffiliated insurance company with an A.M.  Best financial strength rating of at least A-, it being understood that even if such amounts are covered by insurance from such an insurance company, such amounts shall count against such basket if responsibility for such amounts has been denied by such insurance company) shall be rendered against any Company or any combination thereof and the same shall remain undischarged, unvacated or unbonded for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon properties of any Company to enforce any such Order;

(j)         one or more ERISA Events or noncompliance or other events with respect to Canadian Pension Plans or Foreign Plans shall have occurred that, in the opinion of the Required Lenders, when taken together with all other such ERISA Events and noncompliance or other events with respect to Canadian Pension Plans or Foreign Plans that have occurred, could reasonably be expected to result in liability of any Company or any of its ERISA Affiliates in an aggregate amount exceeding $10,000,000 or the imposition of a Lien on any properties of a Company that is not a Permitted Lien;

(k)          any security interest and Lien purported to be created by any Security Document shall cease to be in full force and effect, or shall cease to give the Collateral Agent, for the benefit of the Secured Parties, the Liens, rights, powers and privileges purported to be created and granted under such Security Documents with respect to any material portion of the Collateral (including a valid, enforceable, perfected first priority security interest in and Lien on, such portion of the Collateral thereunder (except as otherwise expressly provided in this Agreement or such Security Document)) in favor of the Collateral Agent, or shall be asserted by or on behalf of any Company not to be, a valid, enforceable, perfected, first priority (except as otherwise expressly provided in this Agreement or such Security Document) security interest in or Lien on the Collateral (other than an immaterial portion) covered thereby;

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(l)          any material provision of any Loan Document, including the Intercreditor and Collateral Agency Agreement (or any Loan Document as a whole) shall at any time and for any reason be declared by a court of competent jurisdiction to be null and void, or a proceeding shall be commenced by or on behalf of any Loan Party or any other Person, or by any Governmental Authority, seeking to establish the invalidity or unenforceability thereof (exclusive of questions of interpretation of any provision thereof), or any Company (or, with respect to the Intercreditor and Collateral Agency Agreement, any Second Out Term Loan Lender or the Second Out Term Loan Administrative Agent) shall, directly or indirectly, repudiate, revoke, terminate or rescind (or purport to do any of the foregoing) or deny any portion of its liability or obligation for the Obligations, or with respect to the Intercreditor and Collateral Agency Agreement, its obligations thereunder;

(m)         there shall have occurred a Change in Control; or

(n)          there shall have occurred the termination of, or the receipt by any Company of notice of the termination of, or the occurrence of any event or condition which would, with the passage of time or the giving of notice or both, constitute an event of default under or permit the termination of, any one or more Data Center Leases of any Company, provided that it shall not constitute an Event of Default pursuant to this paragraph (o): (i) unless the impact of the termination of any such affected Data Center Leases, individually or in the aggregate, reduces or could reasonably be expected to reduce the Consolidated EBITDA of Borrower and its Subsidiaries for the Test Period commencing from the first full fiscal quarter following any such termination by at least 15% below the amount it would have been had all such terminations not occurred or (ii) if the termination of such Data Center Lease occurs as a result of (A) the expiration of any such Data Center Lease on the stated expiration date or (B)  any Company terminating such Data Center Lease in accordance with its terms in the absence of any default thereunder by any party thereto;

then, and in every such event (other than an event with respect to Borrower described in paragraph (g) or (h) above), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to Borrower, take any or all of the following actions, at the same or different times:  (i) declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Loan Parties accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest, notice of acceleration, notice of intent to accelerate or any other notice of any kind, all of which are hereby expressly waived by the Loan Parties (to the maximum extent permitted by applicable Legal Requirements), anything contained herein or in any other Loan Document or otherwise to the contrary notwithstanding; and (ii) exercise any and all of its other rights and remedies under applicable Legal Requirements, hereunder and under the other Loan Documents; and in any event with respect to Borrower described in paragraph (g) or (h) above,  the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Loan Parties accrued hereunder and under any other Loan Document, shall automatically become due and payable, without presentment, demand, protest, notice of acceleration, notice of intent to accelerate or any other notice of any kind, all of which are hereby expressly waived by the Loan Parties (to the maximum extent permitted by applicable Legal Requirements), anything contained herein or in any other Loan Document or otherwise to the contrary notwithstanding.

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In addition, without limiting the foregoing, in the event of a foreclosure (or other similar exercise of remedies) by Collateral Agent on any of the Collateral pursuant to a public or private sale or other Disposition, the Collateral Agent, the Administrative Agent or any Secured Party may be the purchaser of any or all of such Collateral at any such sale or other Disposition and, in addition, the Collateral Agent or the Administrative Agent, as agent for and representative of all of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or other Disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by Collateral Agent at such sale.

Section 8.02       Rescission.  If at any time after termination of the Commitments or acceleration of the maturity of the Loans, the Loan Parties shall pay all arrears of interest and all payments on account of principal of the Loans owing by them that shall have become due otherwise than by acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rates specified herein) and all Defaults (other than non-payment of principal of and accrued interest on the Loans due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to Section 10.02, then upon the written consent of the Required Lenders (which may be given or withheld in their sole discretion) and written notice to Borrower, the termination of the Commitments or the acceleration and their consequences may be rescinded and annulled; but such action shall not affect any subsequent Default or Event of Default or impair any right or remedy consequent thereon.  The provisions of the preceding sentence are intended merely to bind the Lenders and the other Secured Parties to a decision that may be made at the election of the Required Lenders, and such provisions are not intended to benefit Borrower or any of the other Loan Parties and do not give Borrower and/or any of the Loan Parties the right to require the Lenders to rescind or annul any acceleration hereunder, even if the conditions set forth herein are met.

Section 8.03        [Reserved].

Section 8.04       Application of Proceeds.  The proceeds received by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Collateral pursuant to the exercise by the Collateral Agent of its remedies shall, subject to any intercreditor or similar agreement with respect to the Obligations, be applied, in full or in part, together with any other sums then held by the Collateral Agent pursuant to this Agreement or any other Loan Document, promptly by the Collateral Agent as follows:

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(a)          First, to the payment in full in cash of all costs and expenses, fees, commissions and taxes of such sale, collection or other realization (including compensation to the Collateral Agent, the Administrative Agent and their respective Related Persons, and all expenses, liabilities and advances made or incurred by the Collateral Agent, the Administrative Agent and their respective Related Persons in connection therewith and all amounts for which the Collateral Agent and the Administrative Agent and their Related Persons is entitled to indemnification pursuant to the provisions of any Loan Document), together with interest on each such amount at the highest rate then in effect under this Agreement from and after the date such amount is due, owing or unpaid until paid in full;

(b)          Second, to the payment in full in cash of all other reasonable costs and expenses of such sale, collection or other realization (including compensation to the other Secured Parties and their agents and counsel and all costs, liabilities and advances made or incurred by the other Secured Parties in connection therewith), together with interest on each such amount at the highest rate then in effect under this Agreement from and after the date such amount is due, owing or unpaid until paid in full;

(c)          Third, without duplication of amounts applied pursuant to clauses (a) and (b) above, to the payment in full in cash, pro rata, of interest and other amounts (excluding principal) constituting Obligations in each case equally and ratably in accordance with the respective amounts thereof then due and owing;

(d)          Fourth, to the payment in full in cash of principal of the Loans, pro rata;

(e)          Fifth, to the payment of the obligations outstanding under the Second Out Term Loan Credit Agreement ratably to the Second Out Term Loan Lenders in accordance with the terms of the Intercreditor and Collateral Agency Agreement and the Second Out Term Loan Credit Agreement;

(f)          Sixth, to the payment in full in cash of the remaining Secured Obligations then due and owing, pro rata; and

(g)          Seventh, the balance, if any, to the Person lawfully entitled thereto (including the applicable Loan Party or its successors or assigns) or as a court of competent jurisdiction may direct.

In the event that any such proceeds are insufficient to pay in full the items described in clauses (a) through (f) above, the Loan Parties shall remain liable, jointly and severally, for any deficiency.

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ARTICLE IX.

THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT

Section 9.01         Appointment.

(a)          Each Lender hereby irrevocably designates and appoints each of the Administrative Agent and the Collateral Agent as an agent of such Lender under this Agreement and the other Loan Documents and the Administrative Agent and the Collateral Agent hereby accept such designations and appointments.  Each Lender irrevocably authorizes each Agent, in such capacity, through its agents or employees, to take such actions on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are delegated to such Agent by the terms of this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto.  In furtherance of the foregoing, the Administrative Agent and the Collateral Agent and each of their Related Persons shall be entitled to request and receive written instructions from the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) prior to taking or not taking any actions under this Agreement and the other Loan Documents.  The provisions of this Article IX are solely for the benefit of the Agents and the Lenders, and except with respect to consent or consultation rights expressly set forth herein, and no Loan Party shall have rights as a third party beneficiary of any such provisions.  Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and any rights of the Secured Parties with respect thereto as contemplated by and in accordance with the provisions of this Agreement and the other Loan Documents.  In performing its functions and duties hereunder, each Agent shall act solely as an agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Borrower or any of its Subsidiaries.  Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement with reference to the Administrative Agent or the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties.  Without limiting the foregoing, each Lender hereby irrevocably appoints and authorizes the Administrative Agent and the Collateral Agent to enter into the Intercreditor and Collateral Agency Agreement and to take such actions and to exercise such powers under the Intercreditor and Collateral Agency Agreement as are delegated to Collateral Agent by the terms thereof, together with all such powers as are reasonably incidental thereto, and each Lender understands and agrees that Collateral Agent is also acting as collateral agent for the benefit of the other Secured Parties under the Second Out Term Loan Documents.  Each Lender hereby irrevocably appoints and authorizes Administrative Agent and Collateral Agent to enter into an intercreditor agreement with respect to the Indebtedness described in Sections 6.01(d) and (f) and to take such actions and to exercise such powers under the such intercreditor agreement as are delegated to the Administrative Agent and the Collateral Agent by the terms thereof, together with all such powers as are reasonably incidental thereto.  Nothing in this Agreement shall require the Agents to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder.

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(b)         Each Lender hereby irrevocably authorizes the Administrative Agent, based upon the instruction of the Required Lenders, to credit bid and purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof conducted by Collateral Agent under the provisions of the UCC or PPSA, including pursuant to Sections 9-610 or 9-620 of the UCC (or any equivalent provision of the UCC or the PPSA), at any sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363 of the Bankruptcy Code, or at any other sale or foreclosure (or similar exercise of remedies) conducted by Collateral Agent (whether by judicial action or otherwise) in accordance with applicable Legal Requirements.

(c)         Each Lender irrevocably appoints each other Lender as its agent and bailee for the purpose of perfecting Liens (whether pursuant to Section 8-301(a)(2) of the UCC or otherwise), for the benefit of the Secured Parties, in assets in which, in accordance with the UCC or any other applicable Legal Requirement a security interest can be perfected by possession or control.  Should any Lender (other than the Collateral Agent) obtain possession or control of any such Collateral, such Lender shall notify the Collateral Agent thereof, and, promptly following the Collateral Agent’s request therefor, shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.

Section 9.02        Agent in Its Individual Capacity.  Each Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as an Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, any Company or Affiliate thereof as if it were not an Agent hereunder and without duty to account therefor to the Lenders.

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Section 9.03        Exculpatory Provisions.  No Agent nor any of their respective Related Persons shall have any duties or obligations except those expressly set forth in the Loan Documents.  Without limiting the generality of the foregoing no Agent nor any of their respective Related Persons, (a) shall be subject to any fiduciary or other implied duties, covenants or obligations, regardless of whether a Default or Event of Default has occurred and is continuing, (b) shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02); provided that no Agent nor any of their respective Related Persons shall be required to take any action that, in its opinion or the opinion or advice of its counsel, may expose such Agent to liability, if the Agent or any of its Related Persons is not indemnified to its satisfaction (in its sole discretion), or that is contrary to any Loan Document or applicable Legal Requirements including, for the avoidance of doubt any action that may be in violation of the automatic stay under any Insolvency Law or that may effect a foreclosure (or similar exercise of remedies), modification or termination of Property of a Defaulting Lender under any Insolvency Laws, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose or shall be liable for the failure to disclose, any information relating to any Company or any of its Affiliates that is communicated to or obtained by the Person serving as such Agent or any of its Affiliates in any capacity.  No Agent nor any of their respective Related Persons shall be liable for any action taken or not taken by it (including ordinary negligence) under this Agreement or under any other Loan Document or under any other document or instrument referred to or provided for herein or therein or in connection herewith or therewith (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as any Agent or any of their respective Related Persons shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and nonappealable judgment.  No Agent nor any of their respective Related Persons shall be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof describing such Default or Event of Default is given to such Agent by Borrower or a Lender, and no Agent nor any of their respective Related Persons shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered 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 in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document.  Each party to this Agreement acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof, and that each of such service providers will be deemed to be acting at the request and on behalf of Borrower and the other Loan Parties.  No Agent nor any of their respective Related Persons shall be liable for any action taken or not taken by any such service provider.

No Agent nor any of their respective Related Persons shall be (i) responsible or liable for any failure or delay in the performance of its obligations under this Agreement or the other Loan Documents arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; pandemics, riots; business interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action; (ii) (A) required to qualify in any jurisdiction in which it is not presently qualified to perform its obligations as Agent or (B) required to take any enforcement action against a Loan Party or any other obligor outside of the United States; (iii) responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument, or document other than this Agreement and any other Loan Document to which Administrative Agent is a party, whether or not an original or a copy of such agreement has been provided to the Administrative Agent; (iv) have a duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument, or document other than this Agreement; or (v) responsible for nor have any duty to monitor the performance or any action of the Loan Parties, the Lenders, or any of their directors, members, officers, agents, affiliates or employee, nor shall they have any liability in connection with the malfeasance or nonfeasance by such party; the Administrative Agent may assume performance by all such Persons of their respective obligations.

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Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on any Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer identification program, or other obligations required or imposed under or pursuant to any Anti-Terrorism Law, including any programs involving any of the following items relating to or in connection with the Loan Parties or their respective Subsidiaries, any of their respective Affiliates or agents, the Loan Documents or the transactions hereunder:  (i) any identity verification procedures, (ii) any record keeping, (iii) any comparisons with government lists, (iv) any customer notices or (v) any other procedures required under any anti-terrorism Law.

The delivery by Borrower or any other Loan Party of any reports, information and documents to the Administrative Agent or the Required Lenders is for informational purposes only and the Administrative Agent’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein.

Section 9.04        Reliance by Agent.  Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, opinion, report, consent, Order, document or other writing (including any electronic message, internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent, or otherwise authenticated by a proper Person.  Each Agent also may rely upon any statement made to it orally and believed by it to be made by a proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, each Agent may presume that such condition is satisfactory to such Lender unless each Agent shall have received written notice to the contrary from such Lender before the making of such Loan.  Each Agent may consult with legal counsel (who may be counsel for Borrower), independent accountants and other Advisors 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 Advisors.

Section 9.05        Delegation of Duties.  Each Agent may perform any and all of its duties and exercise its rights and powers under this Agreement or under any other Loan Document by or through, or delegate any and all such rights and powers to, any one or more sub-agents appointed by such Agent and, so long as no Default or Event of Default has occurred and is continuing, Borrower consent (not to be unreasonably withheld or delayed) shall be required for (i) any delegation of a material portion of the duties of such Agent (taken as a whole) or (ii) any delegation that could reasonably be expected to have a Material Adverse Effect on Borrower; provided, however, if Borrower fails to reply to any delegation request pursuant to this Section 9.05 within two (2) Business Days, Borrower shall be deemed to have given its consent to such request; provided, further, Borrower consent shall not be required if such delegation is, in the opinion of such Agent, necessary or advisable to create, maintain, or perfect the security interest in or Lien on the Collateral.  Each 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 Affiliates.  The exculpatory, indemnification and other provisions of the preceding paragraphs shall apply to any such sub-agent and to the Affiliates of each Agent and any such sub-agent, and shall apply, without limiting the foregoing, to their respective activities in connection with the syndication of the Facility provided for herein as well as activities as Agent.  The Agents shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent.

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Section 9.06        Successor Agent.  Each Agent may resign as such at any time upon at least 10 days’ prior notice to the Lenders and Borrower.  In addition, upon not less than thirty (30) days’ prior written notice to the Lenders and Borrower, each Agent may be removed (with or without cause) by the Required Lenders at any time in its sole discretion, but with the prior written consent of Borrower (such consent not to be unreasonably withheld, conditioned or delayed).  Upon any such resignation or removal, the Required Lenders shall have the right, in consultation with Borrower, to appoint a successor Agent from among the Lenders.  If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within five (5) days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which successor shall be (i) a commercial banking institution organized under the laws of the United States (or any State thereof) or a United States branch or agency of a commercial banking institution, in each case, having combined capital and surplus of at least $500,000,000, or an Affiliate of such institution, or (ii) another entity satisfactory to the Required Lenders; providedthat if such retiring Agent is unable to find a successor Agent that is willing to accept such appointment and which meets the qualifications set forth above, the retiring Agent’s resignation shall nevertheless thereupon become effective and the retiring (or retired) Agent shall be discharged from all of its duties and obligations under the Loan Documents, and the Required Lenders shall assume and perform all of the duties of the Agent under the Loan Documents until such time, if any, as the Required Lenders appoint a successor Agent.  Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent, and the retiring or removed Agent shall be discharged from all of its duties and obligations under this Agreement and the other Loan Documents.  The fees payable by Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor.  After an Agent’s resignation or removal hereunder, the provisions of this Article IX, Section 10.03 and Sections 10.08 to 10.10 shall continue in effect for the benefit of such retiring or removed Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent.  Notwithstanding any of the foregoing, each of the parties of this Agreement agree that any corporation or association into which an Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer all or substantially all of its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which such Agent is a party, will be and become the successor under this Agreement and will have and succeed to the rights, powers, duties, immunities and privileges as its predecessor, without the execution or filing of any instrument or paper or the performance of any further act.

Section 9.07        Non-Reliance on Agent and Other Lenders.  Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender or any of their respective Affiliates and based on such documents and information as it has deemed appropriate, conducted its own independent investigation of the financial condition and affairs of the Loan Parties and their Subsidiaries and made its own credit analysis and decision to enter into this Agreement.  Each Lender further represents and warrants that it has reviewed each document made available to it on the Platform in connection with this Agreement and has acknowledged and accepted the terms and conditions applicable to the recipients thereof (including any such terms and conditions set forth, or otherwise maintained, on the Platform with respect thereto).  Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender or any of their respective Affiliates and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.

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Section 9.08        Indemnification.  The Lenders severally agree to indemnify each Agent in its capacity as such and each of its Related Persons (to the extent not reimbursed by Borrower or the Guarantors and without limiting the obligation of Borrower or the Guarantors to do so), ratably according to their respective outstanding Loans and Commitments in effect on the date on which indemnification is sought under this Section 9.08 (or, if indemnification is sought after the date upon which all Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such outstanding Loans and Commitments as in effect immediately before such date), from and against any and all liabilities, obligations, losses, damages, fines, penalties, actions, claims, suits, judgments, litigations, investigations, inquiries or proceedings, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent or Related Person in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein, the Transactions or any of the other transactions contemplated hereby or thereby or any action taken or omitted by such Agent or Related Person under or in connection with any of the foregoing (IN ALL CASES, WHETHER OR NOT CAUSED OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF ANY AGENT OR RELATED PERSON); provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, claims, suits, judgments, litigations, investigations, inquiries or proceedings, costs, expenses or disbursements that are found by a final and nonappealable judgment of a court of competent jurisdiction to have directly resulted solely and directly from such Agent’s or Related Person’s, as the case may be, gross negligence or willful misconduct.  The agreements in this Section 9.08 shall survive the payment of the Loans and all other amounts payable hereunder.

Section 9.09        Lender Action.  Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any Loan Party or any other obligor under any of the Loan Documents (including the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures or cause any of the foregoing (through Affiliates or otherwise), with respect to any Collateral or any other Property of any such Loan Party, without the prior written consent of the Administrative Agent (acting at the direction of the Required Lenders).  Without limiting the foregoing, each Lender agrees that, except as otherwise provided in any Loan Documents or with the written consent of the Administrative Agent (acting at the direction of the Required Lenders), it will not take any enforcement action, accelerate Obligations under any Loan Documents, or exercise any right that it might otherwise have under applicable Legal Requirements to credit bid or purchase any portion of the Collateral at any sale or foreclosure (or similar exercise of remedies) thereof referred to in Section 9.01(b); provided that nothing contained in this Section shall affect any Lender’s right to credit bid its pro rata share of the Obligations pursuant to Section 363(k) of the Bankruptcy Code.

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Section 9.10       Withholding Taxes.  To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax.  If the Internal Revenue Service or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding Tax ineffective or for any other reason, or if Administrative Agent reasonably determines that a payment was made to a Lender pursuant to a Loan Document without deduction of applicable withholding Tax from such payment, within ten (10) days after demand therefor, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.

Section 9.11         Lender’s Representations, Warranties and Acknowledgements

(a)          Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of Borrower and its Subsidiaries in connection with Credit Events hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Borrower and its Subsidiaries.  No Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to the Lenders.  Each Lender acknowledges that no Agent or Related Person of any Agent has made any representation or warranty to it.  Except for documents expressly required by any Loan Document to be transmitted by an Agent to the Lenders, no Agent shall have any duty or responsibility (either express or implied) to provide any Lender with any credit or other information concerning any Loan Party, including the business, prospects, operations, Property, financial and other condition or creditworthiness of any Loan Party or any Affiliate of a Loan Party, that may come in to the possession of an Agent or any of its Related Persons.

(b)          Each Lender, by delivering its signature page to this Agreement or an Assignment and Assumption and funding its Loan, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be approved by any Agent, the Required Lenders or the Lenders, as applicable, on the Closing Date.

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Section 9.12        Security Documents and Guarantee.

(a)         Agents under Security Documents and Guarantee.  Each Secured Party hereby further authorizes the Administrative Agent or the Collateral Agent, as applicable, on behalf of and for the benefit of the Secured Parties, to be the agent for and representative of the Secured Parties with respect to the Guarantee, the Collateral and the Loan Documents.  Subject to Section 10.02, without further written consent or authorization from any Secured Party, the Administrative Agent or the Collateral Agent (acting at the direction of the Required Lenders), as applicable, may execute any documents or instruments necessary to (i) in connection with a sale or Disposition of assets permitted by this Agreement, release any Lien encumbering any item of Collateral that is the subject of such sale or other Disposition of assets or (ii) release any Guarantor from the Guarantee pursuant to Section 7.10 or with respect to which the Required Lenders (or such other Lenders as may be required to give such consent under Section 10.02) have otherwise consented (it being understood and agreed with respect to release of Liens under this subsection that the Administrative Agent or Collateral Agent, as applicable, in each case, may conclusively rely without further inquiry on a certificate of a Responsible Officer as to the release of Liens being made in fully compliance of the Loans Documents).

(b)         Right to Realize on Collateral and Enforce Guarantee.  Anything contained in any of the Loan Documents to the contrary notwithstanding, Borrower, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guarantee, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Loan Documents may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit of the Secured Parties in accordance with the terms hereof and thereof and all powers, rights and remedies under the Security Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (ii) in the event of a foreclosure or similar enforcement action by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other Disposition (including, without limitation, pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other Disposition and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or Disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other Disposition.

(c)          Release of Collateral and Guarantees, Termination of Loan Documents.

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(i)         Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Administrative Agent (acting at the direction of the Required Lenders) shall take such actions as shall be required to release its security interest in any Collateral subject to any Disposition permitted by the Loan Documents and to release any guarantee obligations under any Loan Document of any Person subject to such Disposition, to the extent necessary to permit consummation of such Disposition in accordance with the Loan Documents (it being understood and agreed with respect to release of Liens under this subsection that the Administrative Agent or Collateral Agent, as applicable, in each case, may conclusively rely without further inquiry on a certificate of a Responsible Officer as to the release of Liens being made in fully compliance of the Loans Documents).

(ii)         Notwithstanding anything to the contrary contained herein or any other Loan Document, when all Secured Obligations under clauses (a) and (b) of the definition thereof (other than contingent reimbursement and indemnification obligations that are not then due and payable) have been paid in full and all Commitments have terminated or expired, upon request of Borrower, the Administrative Agent and the Collateral Agent shall (without notice to, or vote or consent of, any Lender, or any other Secured Party) take such actions as shall be required or reasonably requested to release its security interest in all Collateral, and to release all guarantee obligations provided for in any Loan Document, whether or not on the date of such release there may be outstanding Secured Obligations under clause (c) of the definition thereof.  Any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Borrower or any Guarantor or any substantial part of its Property, or otherwise, all as though such payment had not been made.

In furtherance of the foregoing, the Administrative Agent and Collateral Agent shall not be responsible for (i) perfecting, maintaining, monitoring, preserving or protecting the security interest or Lien granted under this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, (ii) the filing, re-filing, recording, re-recording or continuing or any document, financing statement, Mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on or the payment of taxes with respect to any of the Collateral.  The actions described in items (i) through (iii) shall be the sole responsibility of Borrower.

Section 9.13        Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim.  In case of the pendency of any proceeding under any Insolvency Laws relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

(a)          to file a verified statement pursuant to rule 2019 of the Federal Rules of Bankruptcy Procedure that, in its sole opinion, complies with such rule’s disclosure requirements for entities representing more than one creditor;

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(b)          to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its respective agents and counsel and all other amounts due the Administrative Agent under Sections 2.02 and 10.03) allowed in such judicial proceeding; and

(c)          to collect and receive any monies or other Property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under this Agreement.  To the extent that the payment of any such compensation, expenses, disbursements and advances of the Administrative Agent, its agents and counsel, and any other amounts due the Administrative Agent under this Agreement out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Lenders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

Section 9.14        Hypothecary Representative. For the purposes of the grant of security under the laws of the Province of Quebec (Canada) which may now or in the future be required to be provided by any Loan Party, the Collateral Agent is hereby irrevocably authorized and appointed by each of the Secured Parties, for themselves and for each affiliate that is a Secured Party, hereto to act as hypothecary representative (within the meaning of Article 2692 of the Civil Code of Québec) for all present and future Secured Parties (in such capacity, the “Hypothecary Representative”) in order to hold any hypothec granted under the laws of the Province of Quebec (Canada) and to exercise such rights and duties as are conferred upon the Hypothecary Representative under the relevant deed of hypothec and applicable law (with the power to delegate any such rights or duties). The execution prior to the date hereof by the Collateral Agent in its capacity as the Hypothecary Representative of any deed of hypothec or other security documents made pursuant to the laws of the Province of Quebec (Canada), is hereby ratified and confirmed. Any Person who becomes a Secured Party or successor Collateral Agent shall be deemed to have consented to and ratified the foregoing appointment of the Collateral Agent as the Hypothecary Representative on behalf of all Secured Parties, including such Person and any affiliate or branch of such Person designated as a Secured Party.  For greater certainty, the Collateral Agent, acting as the Hypothecary Representative, shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favor of the Collateral Agent in this Agreement, which shall apply mutatis mutandis.  In the event of the resignation of the Collateral Agent (which shall include its resignation as the Hypothecary Representative) and appointment of a successor Collateral Agent, such successor Collateral Agent shall also act as the Hypothecary Representative, as contemplated herein.

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Section 9.14       Intercreditor Agreement.  REFERENCE IS MADE TO THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT. EACH LENDER PARTY HEREBY (a) AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, (b) IRREVOCABLY APPOINTS, AUTHORIZES AND INSTRUCTS ADMINISTRATIVE AGENT TO ENTER INTO THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT AS “ADMINISTRATIVE AGENT” AND ON BEHALF OF SUCH LENDER PARTY AND TO TAKE SUCH ACTIONS AND TO EXERCISE SUCH POWERS UNDER THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT AS ARE DELEGATED TO ADMINISTRATIVE AGENT BY THE TERMS THEREOF, TOGETHER WITH ALL SUCH POWERS AS ARE REASONABLY INCIDENTAL THERETO, (c) IRREVOCABLY APPOINTS, AUTHORIZES AND INSTRUCTS COLLATERAL AGENT TO ENTER INTO THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT AS “COLLATERAL AGENT” AND ON BEHALF OF SUCH LENDER PARTY AND TO TAKE SUCH ACTIONS AND TO EXERCISE SUCH POWERS UNDER THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT AS ARE DELEGATED TO COLLATERAL AGENT BY THE TERMS THEREOF, TOGETHER WITH ALL SUCH POWERS AS ARE REASONABLY INCIDENTAL THERETO, AND EACH LENDER PARTY UNDERSTANDS AND AGREES THAT COLLATERAL AGENT IS ALSO ACTING AS COLLATERAL AGENT FOR THE BENEFIT OF THE OTHER SECURED PARTIES, INCLUDING UNDER THE SECOND OUT TERM LOAN DOCUMENTS AND (d) ACKNOWLEDGES THE TERMS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE REPRESENTATIONS, WAIVERS, COVENANTS AND OTHER AGREEMENTS MADE WITH RESPECT TO, OR ON BEHALF OF, SUCH LENDER PARTY IN THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT. EACH LENDER PARTY AGREES THAT ANY ACTION TAKEN BY ADMINISTRATIVE AGENT, COLLATERAL AGENT OR REQUIRED LENDERS IN ACCORDANCE WITH THE PROVISIONS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, AND THE EXERCISE BY ADMINISTRATIVE AGENT, COLLATERAL AGENT OR REQUIRED LENDERS OF ANY RIGHTS OR REMEDIES SET FORTH THEREIN, TOGETHER WITH ALL OTHER POWERS REASONABLY INCIDENTAL THERETO, SHALL BE AUTHORIZED BY AND BINDING UPON ALL LENDER PARTIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADMINISTRATIVE AGENT AND COLLATERAL AGENT, AS APPLICABLE, SHALL HAVE THE SOLE AND EXCLUSIVE AUTHORITY TO (I) ACT AS THE DISBURSING AND COLLECTING AGENT FOR LENDERS WITH RESPECT TO ALL PAYMENTS AND COLLECTIONS ARISING IN CONNECTION WITH THE LOAN DOCUMENTS; (II) EXECUTE AND DELIVER AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT, RESPECTIVELY, ANY INTERCREDITOR OR SUBORDINATION AGREEMENT (OR JOINDER THERETO), AND ACCEPT DELIVERY THEREOF FROM ANY LOAN PARTY OR OTHER PERSON; (III) ACT AS COLLATERAL AGENT FOR LENDER PARTIES FOR PURPOSES OF PERFECTING AND ADMINISTERING LIENS UNDER THE FINANCING DOCUMENTS, AND FOR ALL OTHER PURPOSES STATED THEREIN; (IV) MANAGE, SUPERVISE OR OTHERWISE DEAL WITH COLLATERAL; AND (V) TAKE ANY ENFORCEMENT ACTION OR OTHERWISE EXERCISE ANY RIGHTS OR REMEDIES WITH RESPECT TO ANY COLLATERAL UNDER THE LOAN DOCUMENTS, APPLICABLE LAW OR OTHERWISE. THE DUTIES OF ADMINISTRATIVE AGENT AND COLLATERAL AGENT SHALL BE MINISTERIAL AND ADMINISTRATIVE IN NATURE, AND NEITHER ADMINISTRATIVE AGENT NOR COLLATERAL AGENT SHALL HAVE A FIDUCIARY RELATIONSHIP WITH ANY LENDER PARTY, PARTICIPANT OR OTHER PERSON, BY REASON OF ANY LOAN DOCUMENT OR ANY TRANSACTION RELATING THERETO. THE PROVISIONS OF THIS SECTION ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT PROVISIONS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT. REFERENCE MUST BE MADE TO THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER PARTY IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NONE OF ADMINISTRATIVE AGENT, COLLATERAL AGENT NOR ANY OF THEIR AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER PARTY AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT. IN THE EVENT OF AN INCONSISTENCY BETWEEN THIS AGREEMENT AND THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, THE PROVISIONS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT SHALL GOVERN AND CONTROL.

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ARTICLE X.

MISCELLANEOUS

Section 10.01      Notices.  (a) Generally.  Notices and other communications provided for herein shall, except as provided in Section 10.01(b), be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows:

(i)          if to any Company, to Borrower at One Ravinia Drive, Suite 1300, Atlanta, Georgia 30346, Attention:  Chief Financial Officer, Facsimile No.:  (404) 302-9920, with a copy to (which shall not constitute notice or service of process) (A) Jenner & Block LLP, 353 North Clark Street, Chicago, IL 60654, Attention:  Anna Meresidis, email: ameresidis@jenner.com and (B) Milbank LLP, 55 Hudson Yards, New York, NY 10001, Attention: Abhi Raval, email: araval@milbank.com;

(ii)          if to the Administrative Agent or the Collateral Agent, to it at:  Wilmington Trust, National Association, 50 South 6th Street, Suite 1290, Minneapolis, MN 55402, Attention:  David Bergstrom, Facsimile No.:  (612)-217-5651, with a copy to (which shall not constitute notice or service of process) Willkie Farr & Gallagher LLP, 787 Seventh Avenue New York, NY 10019-6099, Attention: Jason Pearl, email: jpearl@willkie.com;

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(iii)         if to the Specified Lender Advisors, to it at:  Gibson, Dunn & Crutcher LLP 811 Main Street Suite 3000, Houston, TX 77002-6117, Attention:  Shalla Prichard, email: sprichard@gibsodunn.com; and

(iv)         if to a Lender, to it at its address (or facsimile number) set forth on Annex I or in the Assignment and Assumption pursuant to which such Lender shall have become a party hereto.

Notices and other communications to the Lenders hereunder may (subject to Section 10.01(b)) be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent.  Any party hereto may change its address, facsimile number or e-mail address for notices and other communications hereunder by notice to the other parties hereto.  The Administrative Agent or Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.  Unless the Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (B) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (A) of notification that such notice or communication is available and identifying the website address therefor.

(b)          Posting.  Each Loan Party hereby agrees that it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to this Agreement and any other Loan Document, including all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (i) relates to a request for a new, or a conversion of an existing, Borrowing or other extension of credit (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due under this Agreement before the scheduled date therefor, (iii) provides notice of any Default or Event of Default under this Agreement or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other Credit Event hereunder (all such non-excluded communications, collectively, the “Communications”), by (x) transmitting the Communications in an electronic/soft medium in a format reasonably acceptable to the Administrative Agent at the e-mail address(es) provided to Borrower by the Administrative Agent from time to time or in such other form, including hard copy delivery thereof, as the Administrative Agent shall require or (y) pursuant to the last paragraph of Section 5.01.  In addition, each Loan Party agrees to continue to provide the Communications to the Administrative Agent in the manner specified in this Agreement or any other Loan Document or in such other form, including hard copy delivery thereof, as the Administrative Agent shall require.  Nothing in this Section 10.01 shall prejudice the right of the Agents, any Lender or any Loan Party to give any notice or other communication pursuant to this Agreement or any other Loan Document in any other manner specified in this Agreement or any other Loan Document or as any such Agent shall require.

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(c)        Email.  To the extent consented to by the Administrative Agent in writing from time to time, the Administrative Agent agrees that receipt of the Communications by the Administrative Agent at its e-mail address(es) set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents.

(d)       Platform.  Each Loan Party further agrees that the Administrative Agent may make the Communications available to the other Agents, the Lenders by posting the Communications on a Platform.  The Platform and any Approved Electronic Communications are provided “as is” and “as available.”  The Agents do not warrant the accuracy or completeness of the Communications, or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Platform and the Approved Electronic Communications.  No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by any Agent in connection with the Communications or the Platform.  In no event shall any Agent have any liability to any Loan Party, any Lender or any other Person for damages of any kind, whether or not based on strict liability and including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in contract, tort or otherwise) arising out of or related to any Loan Party’s or any Agent’s transmissions of Communications through Internet (including the Platform), except to the extent caused by the willful misconduct, bad faith or gross negligence of the Administrative Agent, as determined by a final, non-appealable judgment of a court of competent jurisdiction.  Notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.  Each Loan Party understands that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution and agrees and assumes the risks associated with such electronic distribution, except to the extent caused by the willful misconduct, bad faith or gross negligence of the Administrative Agent, as determined by a final, non-appealable judgment of a court of competent jurisdiction.

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(e)         Effective Delivery. The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents.  Each Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents.  Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address.  Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

(f)          Document Retention. Each Loan Party, each Lender and each Agent agrees that the Administrative Agent may, but shall not be obligated to, store any Approved Electronic Communications on the Platform in accordance with the Administrative Agent’s customary document retention procedures and policies.

(g)         Public Lenders. Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to information that is not made available through the “Public Side Information” portion of the Platform and that may contain Non-Public Information with respect to Borrower, its Subsidiaries or their securities for purposes of United States federal or state securities laws.  In the event that any Public Lender has determined for itself to not access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) other Lenders may have availed themselves of such information and (ii) neither Borrower nor the Administrative Agent has any responsibility for such Public Lender’s decision to limit the scope of the information it has obtained in connection with this Agreement and the other Loan Documents.

Section 10.02      Waivers; Amendment.

(a)         No failure or delay by any Agent, any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of each Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by Section 10.02(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether any Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time.  No notice or demand on Borrower or any other Loan Party in any case shall entitle Borrower or any other Loan Party to any other or further notice or demand in similar or other circumstances.

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(b)          Subject to Section 2.16(c) and Sections 10.02(c) and (d), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended, supplemented or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Borrower and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent, the Collateral Agent (in the case of any Security Document) and the Loan Party or Loan Parties that are parties thereto, in each case with the written consent of the Required Lenders; provided that no such agreement shall:

(i)          increase or extend the expiry date of the Commitment of any Lender without the written consent of such Lender (it being understood and agreed that no amendment, modification, termination, waiver or consent with respect to any condition precedent, covenant, Default or Event of Default (or any definition used, respectively, therein), mandatory prepayment or mandatory reduction of the Commitments shall constitute an increase in or extension of the expiry date of the Commitment of any Lender for purposes of this clause (i));

(ii)        reduce the principal amount or premium, if any, of any Loan or reduce the rate of interest thereon (other than interest pursuant to Section 2.06(c)), or reduce any Fees payable hereunder, or change the form or currency of payment of any Obligation, without the written consent of each Lender directly and adversely affected thereby (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this clause (ii));

(iii)        postpone or extend the maturity of any Loan, or any scheduled date of payment of or the installment otherwise due on the principal amount of any Loan under Section 2.09, or the required date of payment of any reimbursement obligation, or any date for the payment of any interest or fees payable hereunder, or reduce the amount of, waive or excuse any such payment (other than a waiver of any increase in the interest rate pursuant to Section 2.06(b)), or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby (it being understood and agreed that no amendment, modification, termination, waiver or consent with respect to any condition precedent, covenant, Default or Event of Default (or any definition used, respectively, therein), mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension of the maturity date or other scheduled payment of any Loan or constitute an extension of the expiration date of any Lender’s commitment);

(iv)         change Section 2.14(b) or (c) or Section 8.04 in a manner that would alter the order of or the pro rata sharing of payments or setoffs required thereby, without the written consent of each Lender;

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(v)        change the percentage set forth in the definition of “Required Lenders” or any other provision of any Loan Document (including this Section 10.02) specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender;

(vi)         release all or substantially all of the Guarantors from their respective Guarantees (except as expressly provided in Article VII), or limit their liability in respect of such Guarantees, without the written consent of each Lender;

(vii)       except as expressly permitted in this Agreement or any Security Document, release all or substantially all of the Collateral from the Liens of the Security Documents or alter the relative priorities of the Secured Obligations entitled to the Liens of the Security Documents (except in connection with securing additional Secured Obligations equally and ratably with the other Secured Obligations), in each case without the written consent of each Lender;

(viii)       change Section 10.04(h) without the consent of each Granting Lender all or any part of whose Loans are being funded by any SPC at the time of any such amendment, waiver or other modification;

(ix)         change Section 10.04(b) in a manner which further restricts assignments thereunder without the written consent of each Lender;

(x)          permit assignments by any Loan Party of its rights or obligations under the Facility without the written consent of each Lender, the Administrative Agent, the Collateral Agent; or

(xi)         other than in respect of Liens securing Indebtedness permitted under Sections 6.01(d), (e) and (f), subordinate the Obligations (or the Liens securing the Obligations) under the Loan Documents to any other Indebtedness;

provided, further,that no such agreement shall amend, modify or otherwise affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent or the Collateral Agent without the prior written consent of the Administrative Agent and/or the Collateral Agent, as the case may be.  Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by Borrower, the Required Lenders and the Administrative Agent if (x) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment, (y) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of, premium, if any, and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement, and (z) Section 2.16(b) is complied with.

(c)          Without the consent of any other Person, the applicable Loan Party or Loan Parties and the Administrative Agent and/or Collateral Agent may (in its or their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional Property to become Collateral for the benefit of the Secured Parties, or as required by applicable Legal Requirements to give effect to, or protect any security interest for the benefit of the Secured Parties, in any Property or assets so that the security interests therein comply with applicable Legal Requirements.

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(d)         Notwithstanding the foregoing, (x) this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders; (y) [reserved]; and (z) the Loan Documents may be amended, modified, supplemented or waived with the consent of the Administrative Agent (acting at the direction of the Required Lenders) at the request of Borrower if such amendment, modification, supplement or waiver is delivered in order to (a) comply with local applicable Legal Requirements or advice of counsel or (b) cure any ambiguity, omission or mistake, in each case, so long as such amendment, modification, supplement or waiver does not directly and adversely affect the rights of any Lender and such amendment, modification, supplement or shall be deemed approved by the Required Lenders if such Lenders shall have received at least five Business Days’ prior written notice of such change and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment.

Section 10.03       Expenses; Indemnity; Damage Waiver.

(a)          The Loan Parties agree, jointly and severally, to pay, promptly upon demand:

(i)          all reasonable and documented out-of-pocket costs and expenses incurred by the Lenders (including the costs and expenses of the Specified Lender Advisors), the Administrative Agent and the Collateral Agent, including the reasonable fees, charges and disbursements of the Specified Lender Advisors and the Advisors to the Administrative Agent and the Collateral Agent, in connection with the syndication of the Loans and Commitments, the preparation, negotiation, execution and delivery of the Loan Documents, the administration of the Credit Events and Commitments, the perfection and maintenance of the Liens securing the Collateral (including, without limitation, conducting Collateral audits from time to time) and any actual or proposed amendment, supplement or waiver of any of the Loan Documents (whether or not the transactions contemplated hereby or thereby shall be consummated);

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(ii)       all reasonable and documented out-of-pocket costs and expenses incurred by the Lenders, Administrative Agent or the Collateral Agent, including the fees, charges and disbursements of the Specified Lender Advisors and the Advisors for the Administrative Agent and the Collateral Agent, in connection with any action, claim, suit, litigation, investigation, inquiry or proceeding affecting the Collateral or any part thereof, in which action, claim, suit, litigation, investigation, inquiry or proceeding the Ad Hoc Group of Lenders, the Administrative Agent or the Collateral Agent is made a party or participates or in which the right to use the Collateral or any part thereof is threatened, or in which it becomes necessary in the judgment of the Ad Hoc Group of Lenders, the Administrative Agent or the Collateral Agent to defend or uphold the Liens granted by the Security Documents (including any action, claim, suit, litigation, investigation, inquiry or proceeding to establish or uphold the compliance of the Collateral with any Legal Requirements);

(iii)        all reasonable and documented out-of-pocket costs and expenses incurred by the Lenders, the Administrative Agent, the Collateral Agent, any other Agent or any Lender, including the fees, charges and disbursements of the Specified Lender Advisors and the Advisors for the Administrative Agent and the Collateral Agent with respect to any of the foregoing incurred in connection with the enforcement or protection of its rights under this Agreement and the other Loan Documents, including its rights under this Section 10.03(a), or in connection with the Loans made hereunder and the collection of the Secured Obligations, including all such costs and expenses incurred during any workout, restructuring or negotiations in respect of the Secured Obligations; and

(iv)         all Other Taxes in respect of the Loan Documents.

(b)         The Loan Parties agree, jointly and severally, to indemnify the Agents, each Lender and each of their respective Related Persons (each such Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, all reasonable out-of-pocket costs and any and all losses, claims, damages, liabilities, fees, fines, penalties, actions, judgments, suits and related expenses, including reasonable Advisors fees, charges and disbursements (collectively, “Claims”), incurred by, imposed on or asserted against any Indemnitee, directly or indirectly, arising out of, in any way connected with, or as a result of (i) the execution, delivery, performance, administration or enforcement of the Loan Documents or any agreement or instrument contemplated thereby or the performance by the parties thereto of their respective obligations thereunder, (ii) any actual or proposed use of the proceeds of the Loans, (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto, (iv) any actual or alleged presence or Release or threatened Release of Hazardous Materials, on, at, under or from any Property owned, leased or operated by any Company at any time, or any Environmental Claim or threatened Environmental Claim related in any way to any Company, (v) any past, present or future non-compliance with, or violation of, Environmental Laws or Environmental Permits applicable to any Company, or any Company’s business, or any Property presently or formerly owned, leased, or operated by any Company or their predecessors in interest, (iv) the environmental condition of any Property owned, leased, or operated by any Company at any time, or the applicability of any Legal Requirements relating to such Property, whether or not occasioned wholly or in part by any condition, accident or event caused by any act or omission of any Company, (vii) the imposition of any environmental Lien encumbering any Real Property, (viii) the consummation of the Transactions and the other transactions contemplated hereby (including the syndication of the Facility) or (ix) any actual or prospective action, claim, suit, litigation, investigation, inquiry or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Loan Party or otherwise, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, apply (x) to disputes solely between or among the Indemnitees or disputes solely between or among Indemnitees and their respective Affiliates, other than disputes arising out of any act or omission on the part of Borrower or its Subsidiaries, it being understood and agreed that the indemnification in this Agreement shall extend to disputes between or among the Administrative Agent and Collateral Agent, acting in such capacity, on the one hand, and one or more Lenders, or one or more of their Affiliates, on the other hand, (y) to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final non-appealable judgment to have directly resulted solely from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of such Indemnitee’s controlled or controlling affiliates or any of their respective officers, directors, employees, agents, controlling persons, members or representatives (collectively, such Indemnitee’s “Indemnitee Related Persons”), or (z) losses, claims, damages, liabilities or related expenses arising out of a material breach by such Indemnitee or any of its Indemnitee Related Persons of its obligations under any Loan Document (as determined by a final and non-appealable judgment of a court of competent jurisdiction).

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(c)          The Loan Parties agree, jointly and severally, that, without the prior written consent of the Administrative Agent or Lender, which consent(s) will not be unreasonably withheld, delayed, or conditioned, the Loan Parties will not enter into any settlement of a Claim in respect of the subject matter of clauses (i) through (ix) of Section 10.03(b) unless such settlement includes an explicit and unconditional release from the party bringing such Claim of all Indemnitees.

(d)          The provisions of this Section 10.03 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the Transactions and the other transactions contemplated hereby, the repayment of the Loans and any other Secured Obligations, the release of any Guarantor or of all or any portion of the Collateral, the expiration of the Commitments, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Agents or any Lender.  All amounts due under this Section 10.03 shall be accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.

(e)          To the extent that the Loan Parties fail to indefeasibly pay any amount required to be paid by them to the Agents or any Related Person of any of the foregoing, under Section 10.03(a) or (b) in accordance with Section 10.03(g), each Lender severally agrees to pay to the Agents or such Related Person such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (such indemnity shall be effective whether or not the related losses, claims, damages, liabilities and related expenses are incurred or asserted by any party hereto or any third party); provided that the unreimbursed Claim was incurred by or asserted against any of the Agents in its capacity as such.  For purposes of this Section 10.03(e), a Lender’s “pro rata share” shall be determined based upon its share of the sum of the total Loans and unused Commitments at the time.

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(f)          To the fullest extent permitted by applicable Legal Requirements, no Loan Party shall assert, and each Loan Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, exemplary, consequential, or punitive damages (including any loss of profits, business or anticipated savings) arising out of, in connection with, or as a result of, any Loan Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or the use of the proceeds thereof.  No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with the Loan Documents or the transactions contemplated hereby or thereby, except to the extent such Indemnitee is found in a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Indemnitee or any of its Indemnitee Related Persons.

(g)          All amounts due under this Section 10.03 shall be payable not later than 10 days after receipt of demand therefor.

Section 10.04       Successors and Assigns.

(a)          The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Loan Parties may not assign or otherwise transfer any of their respective rights or obligations hereunder without the prior written consent of the Administrative Agent, the Collateral Agent and each Lender, which consent may be withheld in their respective sole discretion (and any attempted assignment or transfer by any Loan Party without such consent shall be null and void).  Nothing in this Agreement or any other Loan Document, express or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent expressly provided in Section 10.04(e) and, to the extent expressly contemplated hereby, the other Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement or any other Loan Document.

(b)         Any Lender shall have the right at any time to assign to one or more assignees (other than to any Company or any Affiliate thereof, any Competitor or any Defaulting Lender or a natural person) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that:

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(i)          except in the case of (A) an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, (B) contemporaneous assignments to related Approved Funds that equal at least the amount specified in this Section 10.04(b)(i) in the aggregate or (C) an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 and the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $2,500,000; provided that the foregoing amounts may be reduced with the consent of the Administrative Agent and, so long as no Event of Default or Default under Section 8.01(a) or (b) has occurred and is continuing, Borrower (not to be unreasonably withheld or delayed);

(ii)          each partial assignment shall be made as an assignment of a proportionate part of all of the assigning Lender’s rights and obligations under this Agreement;

(iii)        the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $1,750; provided that such fee shall not be payable in the case of an assignment by any Lender to an Affiliate or an Approved Fund of such Lender;

(iv)         the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and

(v)          each of the Administrative Agent and, unless an Event of Default has occurred and is continuing, Borrower must give its prior written consent to such assignment (which consent shall not be unreasonably withheld, delayed or conditioned).

Notwithstanding the foregoing, the Administrative Agent shall not have any responsibility or liability for monitoring the list or identities of, or enforcing provisions relating to, Eligible Assignees.  Subject to acceptance and recording thereof pursuant to Section 10.04(c), from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement (provided that any liability of Borrower to such assignee under Section 2.12, 2.13 or 2.15 shall be limited to the amount, if any, that would have been payable thereunder by Borrower in the absence of such assignment, except to the extent any such amounts are attributable to a Change in Law occurring after the date of such assignment), and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.15 and 10.03).

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(c)          The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of and stated interest on the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive and binding in the absence of manifest error, and Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by Borrower, the Collateral Agent and any Lender (with respect to its own interest only), at any reasonable time and from time to time upon reasonable prior notice.

(d)          Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in Section 10.04(b) and any written consent to such assignment required by Section 10.04(b), the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register.  No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this Section 10.04(b).  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with the requirements of this Section 10.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.04(e).

(e)          Any Lender shall have the right at any time, without the consent of, or notice to Borrower, the Administrative Agent or any other Person to sell participations to any Person (other than any Company, any Competitor or any Affiliate thereof, a Defaulting Lender or a natural person) (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) Borrower, the Administrative Agent, the Collateral Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve any amendment, modification or waiver of any provision of the Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) is described in clauses (i), (ii) or (iii) of the proviso to Section 10.02(b) and (2) directly and adversely affects such Participant.  Subject to Section 10.04(f), each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.15 (but subject to the requirements and limitations of Section 2.16) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.04(b) (it being understood that the documentation required under Section 2.15(f) shall be delivered to the participating Lender).  To the extent permitted by Legal Requirements, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees in writing to be subject to Section 2.14(c) as though it were a Lender.  Each Lender that sells a participation shall, acting for this purpose as a non-fiduciary agent of Borrower, maintain at one of its offices a register for the recordation of the names and addresses of its Participants, the principal amounts of and stated interest on, and terms of, its participations (the “Participant Register”).  The entries in the Participant Register shall be conclusive and binding absent manifest error, and such Lender (and Borrower, to the extent that the Participant requests payment from Borrower) 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.  No Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1 (c) of the United States Treasury Regulations.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

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(f)          A Participant shall not be entitled to receive any greater payment under Section 2.12, 2.13 or 2.15 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the prior written consent of Borrower (which consent shall not be unreasonably withheld, delayed or conditioned) or the greater payment results from a Change in Law after the date the participation was sold to the Participant.

(g)          Any Lender may at any time, without the consent of Borrower or the Administrative Agent, pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central bank, and this Section 10.04(g) shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.  Without limiting the foregoing, in the case of any Lender that is a fund that invests in bank loans or similar extensions of credit, such Lender may, without the consent of Borrower, the Administrative Agent or any other Person, collaterally assign or pledge all or any portion of its rights under this Agreement, including the Loans and Notes or any other instrument evidencing its rights as a Lender under this Agreement, to any holder of, trustee for, or any other representative of holders of, obligations owed or securities issued, by such fund, as security for such obligations or securities.

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(h)          Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and Borrower, the option to provide to Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to such Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof; provided further that nothing herein shall make the SPC a “Lender” for the purposes of this Agreement, obligate Borrower or any other Loan Party or the Administrative Agent to deal with such SPC directly, obligate Borrower or any other Loan Party in any manner to any greater extent than they were obligated to the Granting Lender, or increase costs or expenses of Borrower.  The Loan Parties and the Administrative Agent shall be entitled to deal solely with, and obtain good discharge from, the Granting Lender and shall not be required to investigate or otherwise seek the consent or approval of any SPC, including for the approval of any amendment, waiver or other modification of any provision of any Loan Document.  The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender.  Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender).  In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, before the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof.  In addition, notwithstanding anything to the contrary contained in this Section 10.04(h), any SPC may (i) with notice to, but without the prior written consent of, Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrower and the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any Non-Public Information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC.

(i)          The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption 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 Legal Requirement, 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.

Section 10.05      Survival of Agreement.  All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the reports, certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Agents or any Lender may have had notice or knowledge of any Default or Event of Default, failure of any condition set forth in Article IV to be satisfied or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as any Obligation (other than (i) contingent reimbursement and indemnification obligations that are not then due and payable, and (ii) so long as the Commitments have not expired or terminated).  The provisions of Article IX and Sections 2.12 to 2.15, 9.06, 10.03 and 10.08 to 10.10 shall survive and remain in full force and effect regardless of the consummation of the Transactions and the other transactions contemplated hereby, the repayment of the Loans, the termination of the Commitments or the termination of this Agreement or any provision hereof.

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Section 10.06     Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  This Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 10.07     Severability.  Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

Section 10.08     Right of Setoff; Marshalling; Payments Set Aside.  If an Event of Default shall have occurred and be continuing, each 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 Legal Requirements, 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) (excluding Excluded Accounts) at any time owing by such Lender or any such Affiliate to or for the credit or the account of any Loan Party against any and all of the obligations of any Loan Party now or hereafter existing under this Agreement or any other Loan Documents held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Loan Document and although such obligations may be contingent or unmatured or are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness.  The rights of each Lender under this Section 10.08 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.  None of any Agent, any Lender shall be under any obligation to marshal any assets in favor of any Loan Party or any other Person or against or in payment of any or all of the Obligations.  To the extent that any Loan Party makes a payment or payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or any Agent or Lender enforces any security interests or exercises any right of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any Insolvency Law or any equitable cause, then, 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 or payments had not been made or such enforcement or setoff had not occurred.

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Section 10.09      Governing Law; Jurisdiction; Waiver of Jury Trial; Consent to Service of Process.

(a)          This Agreement and the other Loan Documents and any claims, controversy, dispute or cause of action (whether sounding in contract, tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of New York without giving effect to any choice of law principles that would apply the laws of another jurisdiction, except to the extent the law of the State of New York is superseded by the Bankruptcy Code.

(b)          Each Loan Party hereby irrevocably and unconditionally submits, for itself and its Property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State court or, to the extent permitted by applicable Legal Requirements, in such federal court.  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Legal Requirements.  Nothing in this Agreement or any other Loan Document or otherwise shall affect any right that the Administrative Agent, any other Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Loan Party or its properties in the courts of any jurisdiction.

(c)          Each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable Legal Requirements, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in Section 10.09(b).  Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable Legal Requirements, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d)         Each party to this Agreement irrevocably consents to service of process in any action or proceeding arising out of or relating to any Loan Document, in the manner provided for notices (other than facsimile or email) in Section 10.01.  Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by applicable Legal Requirements.

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(e)          If any conflict, disagreement or dispute arises between, among, or involving any of the parties hereto concerning the meaning or validity of any provision hereunder or concerning any other matter relating to this Agreement, or any Agent is in doubt as to the action to be taken hereunder, such Agent may, at its option, after sending written notice of the same to the applicable other parties hereto, refuse to act until such time as it (a) receives a final non-appealable order of a court of competent jurisdiction directing delivery of such assets or property or (b) receives a written instruction, executed by each of the parties involved in such disagreement or dispute, in a form reasonably acceptable to such Agent, directing delivery of such assets or property. The Agents will be entitled to act on any such written instruction or final, non-appealable order of a court of competent jurisdiction without further question, inquiry or consent.  The Agents may file an interpleader action in a state or federal court, and upon the filing thereof, the Agents will be relieved of all liability as to such assets or property and will be entitled to recover reasonable and documented out-of-pocket attorneys’ fees, expenses and other costs incurred in commencing and maintaining any such interpleader action.

Section 10.10      Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LEGAL REQUIREMENTS, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT, THE TRANSACTIONS OR THE OTHER 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 PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.10.

Section 10.11       Headings.  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

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Section 10.12     Confidentiality.  Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ and Approved Funds’ directors, officers, employees, agents, advisors and other representatives, including accountants, legal counsel and other Advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential pursuant to the terms hereof; it being agreed that each of the Administrative Agent and the Lenders shall be responsible for the compliance by each of its Affiliates and Approved Funds and each of its and their directors, officers, employees, agents, advisors and other representatives, including accountants, legal counsel and other Advisors compliance with this Section 10.12), (b) to the extent requested by any regulatory authority or any quasi-regulatory authority (such as the National Association of Insurance Commissioners) (in which event the applicable Administrative Agent or Lender shall promptly inform Borrower in advance to the extent permitted by applicable Legal Requirements and will cooperate with Borrower, at Borrower’s sole expense, in securing a protective order with respect thereto to the extent lawfully permitted to do so), (c) to the extent required by applicable Legal Requirements or by any subpoena or similar legal process (in which event the applicable Administrative Agent or Lender shall promptly inform Borrower in advance to the extent permitted by applicable Legal Requirements and will cooperate with Borrower, at Borrower’s sole expense, in securing a protective order with respect thereto to the extent lawfully permitted to do so), (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies under the Loan Documents or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section 10.12, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement; provided that the disclosure of any such Information to any such Person shall be made subject to the acknowledgment and acceptance by such Persons that such Information is being disseminated on a confidential basis (on substantially the terms set forth in this Section 10.12 or as is otherwise reasonably acceptable to Borrower and the Administrative Agent, including, without limitation, as agreed in any confidential information memorandum or other marketing materials), (ii) any actual or prospective counterparty (or its Advisors) to any swap or derivative transaction relating to Borrower and its obligations; provided that such Information shall be provided on a confidential basis on substantially the same terms set forth in this Section 10.12 or as is otherwise reasonably acceptable to Borrower and the Administrative Agent, or (iii) any actual or prospective investor in an SPC, (g) with the consent of Borrower, (h) to any rating agency when required by it, (i) to an investor or prospective investor in securities issued by an Approved Fund of any Lender that also agrees that Information shall be used solely for the purpose of evaluating an investment in such securities issued by an Approved Fund of any Lender or to a trustee, collateral manager, servicer, backup servicer, noteholder or secured party in securities issued by an Approved Fund of any Lender in connection with the administration, servicing and reporting on the assets serving as collateral for securities issued by such Approved Fund, (j) to any assignee or pledge under Section 10.04(g), or (k) to the extent such Information (x) is publicly available at the time of disclosure or becomes publicly available other than as a result of a breach of this Section 10.12 or (y) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a source other than Borrower or any Subsidiary.  In addition, each of the Administrative Agent and the Lenders may disclose the existence of this Agreement and the information about this Agreement to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans, market data collectors, similar service providers to the lending industry, and service providers to the Administrative Agent and the Lenders in connection with the administration and management of this Agreement and the other Loan Documents.  For the purposes of this Section 10.12, “Information” means all information received from Borrower relating to Borrower or any of its Subsidiaries or its business unless (x) it is clearly labeled “Public-Contains Only Public Information,” or (y) any such information is available to the Administrative Agent or any Lender on a nonconfidential basis before disclosure by Borrower.  Any Person required to maintain the confidentiality of Information as provided in this Section 10.12 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

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Section 10.13      Interest Rate Limitation.  Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively, the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable Legal Requirements, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section 10.13 shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.

Section 10.14      Assignment and Assumption.  Each Lender to become a party to this Agreement (other than the Administrative Agent and any other Lender that is a signatory hereto) shall do so by delivering to the Administrative Agent an Assignment and Assumption duly executed by each of the Persons required to be party thereto.

Section 10.15      Obligations Absolute.  To the fullest extent permitted by applicable law, all obligations of the Loan Parties hereunder shall be absolute and unconditional irrespective of:

(a)          any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of any Loan Party;

(b)          any lack of validity or enforceability of any Loan Document or any other agreement or instrument relating thereto against any Loan Party;

(c)          any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from any Loan Document or any other agreement or instrument relating thereto;

(d)          any exchange, release or non-perfection or loss of priority of any Liens on any or all of the Collateral, or any release or amendment or waiver of or consent to any departure from any guarantee, for all or any of the Secured Obligations;

(e)          any exercise or non-exercise, or any waiver of any right, remedy, power or privilege under or in respect hereof or any Loan Document; or

(f)          any other circumstances which might otherwise constitute a defense available to, or a discharge of, the Loan Parties.

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Section 10.16      Waiver of Defenses; Absence of Fiduciary Duties.

(a)          Each of the Loan Parties hereby waives any and all suretyship defenses available to it as a Guarantor arising out of the joint and several nature of its respective duties and obligations hereunder (including any defense contained in Article VII).

(b)          Each Agent, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Loan Parties, their stockholders and/or their Affiliates.  Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Loan Party, its stockholders or its Affiliates, on the other.  The Loan Parties acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Loan Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its stockholders or its Affiliates with respect to the transactions contemplated hereby or the exercise of rights or remedies with respect thereto or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of any Loan Party, its management, stockholders, creditors or any other Person.  Each Loan Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.  Each Loan Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto.

Section 10.17      Reinstatement.  To the extent that any payments on the Indebtedness or proceeds of any Collateral are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor in possession, receiver, receiver and manager, interim receiver or other Person under any bankruptcy law or other Insolvency Law, common law or equitable cause, then to such extent, the Indebtedness so satisfied shall be revived and continue as if such payment or proceeds had not been received and the Secured Parties’ Liens, security interests, rights, powers and remedies under this Agreement and each Loan Document shall continue in full force and effect.  In such event, each Loan Document shall be automatically reinstated and each Loan Party shall take (and shall cause each other Loan Party to take) such action as may be requested by the Administrative Agent, the Collateral Agent or the Required Lenders to effect such reinstatement.

Section 10.18      USA Patriot Act.  Each Lender hereby notifies each Loan Party that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name, address and taxpayer identification number of each Loan Party and other information that will allow such Lender to identify such Loan Party in accordance with the Patriot Act.

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Section 10.19      Acknowledgement and Consent to Bail-In of EEA Financial Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Bank that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a)          the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Bank that is an EEA Financial Institution; and

(b)          the effects of any Bail-In Action on any such liability, including, if applicable:

(i)           reduction in full or in part or cancellation of any such liability;

(ii)         conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii)        the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.

Section 10.20     Collateral Agency and Intercreditor Agreement.  In the event of an inconsistency between this Agreement or any other Loan Document and the Intercreditor and Collateral Agency Agreement, the provisions of the Intercreditor and Collateral Agency Agreement shall govern and control.

Section 10.21      Certain ERISA Matters.

(a)          Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of Borrower or any other Loan Party, that at least one of the following is and will be true:

(i)          such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Employee Benefit Plans in connection with the Loans or the Commitments,

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(ii)         the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,

(iii)        (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or

(iv)         such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

(b)          In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of Borrower or any other Loan Party, that:

(i)          none of the Administrative Agent or its Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto),

(ii)         the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least  $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),

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(iii)       the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),

(iv)        the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and

(v)          no fee or other compensation is being paid directly to the Administrative Agent or its Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Commitments or this Agreement.

(c)          The Administrative Agent hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans or the Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

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Section 10.22      Currency Indemnity.  If, for the purposes of obtaining judgment in any court in any jurisdiction with respect to this Agreement or any other Loan Document, it becomes necessary to convert into a particular currency (the “Judgment Currency”) any amount  due under this Agreement or under any other Loan Document in any currency other than the Judgment Currency (the “Currency Due”), then conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which judgment is given.  For this purpose “rate of exchange” means the rate at which the Administrative Agent is able, on the relevant date, to purchase the Currency Due with the Judgment Currency in accordance with its normal practice at its head office.  In the event that there is a change in the rate of exchange prevailing between the Business Day immediately preceding the day on which the judgment is given and the date of receipt by the Administrative Agent of the amount due, the Loan Parties shall, on the date of receipt by the Administrative Agent, pay such additional amounts, if any, or be entitled to receive reimbursement of such amount, if any, as may be necessary to ensure that the amount received by the Administrative Agent on such date is the amount in the Judgment Currency which when converted at the rate of exchange prevailing on the date of receipt by the Administrative Agent is the amount then due under this Agreement or such other Loan Document in the Currency Due.  If the amount of the Currency Due which the Administrative Agent is so able to purchase is less than the amount of the Currency Due originally due to it, Borrower shall indemnify and save the Administrative Agent and the Lenders harmless from and against all loss or damage arising as a result of such deficiency.  This indemnity shall constitute an obligation separate and independent from the other obligations contained in this Agreement and the other Loan Documents, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Administrative Agent from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due under this Agreement or any other Loan Document or under any judgment or order.

[Signature Page Follows]

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IN WITNESS WHEREOF, the parties hereto have caused this Senior Secured Term Loan Credit Agreement to be duly executed by their respective authorized officers or other authorized signatories as of the day and year first above written.

INTERNAP HOLDING LLC, as Borrower

By  /s/ Michael Sicoli

Name: Michael Sicoli

Title: Chief Executive Officer

INTERNAP CONNECTIVITY LLC,

as a Guarantor

By /s/ Richard P. Diegnan

Name: Richard P. Diegnan

Title: President and Secretary

UBERSMITH, INC., as a Guarantor

By /s/ Richard P. Diegnan

Name: Richard P. Diegnan

Title: President and Secretary

WILMINGTON TRUST NATIONAL ASSOCIATION, as Administrative Agent and Collateral Agent
By	/s/ David Bergstrom
Name:	David Bergstrom
Title:	Vice President

EX-10.2

Exhibit 10.2

EXECUTION VERSION

SECOND OUT TERM LOAN CREDIT AGREEMENT

dated as of May 8, 2020,

among

INTERNAP HOLDING LLC,

as Borrower,

THE GUARANTORS PARTY HERETO,

as Guarantors,

THE LENDERS PARTY HERETO,

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Administrative Agent and Collateral Agent

TABLE OF CONTENTS

			Page
ARTICLE I DEFINITIONS			2
	Section 1.01	Defined Terms.	2
	Section 1.02	Classification of Loans and Borrowings	51
	Section 1.03	Terms Generally	51
	Section 1.04	Accounting Terms; GAAP	52
	Section 1.05	Effectuation of Exit Transactions	53
	Section 1.06	Resolution of Drafting Ambiguities	53
	Section 1.07	Division	53
	Section 1.08	Rates	54
	Section 1.09	Limited Condition Transactions	54
	Section 1.10	Interpretation Clause (Québec).	55
ARTICLE II THE CREDITS			55
	Section 2.01	Commitments	55
	Section 2.02	Loan Amounts	56
	Section 2.03	[Reserved]	56
	Section 2.04	Evidence of Debt; Repayment of Loans	56
	Section 2.05	Fees	57
	Section 2.06	Interest on Loans	57
	Section 2.07	Termination of Commitments	59
	Section 2.08	Interest Elections.	59
	Section 2.09	Maturity	61
	Section 2.10	Optional and Mandatory Prepayments of Loans	61
	Section 2.11	Alternate Rate of Interest	63
	Section 2.12	Increased Costs; Change in Legality	64
	Section 2.13	Breakage Payments	67
	Section 2.14	Payments Generally; Pro Rata Treatment; Sharing of Setoffs	67
	Section 2.15	Taxes.	69
	Section 2.16	Mitigation Obligations; Replacement of Lenders	71
	Section 2.17	Increases of the Loan	74
	Section 2.18	Amend and Extend Transactions	77

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	Section 2.19	Refinancing Amendments	79
ARTICLE III REPRESENTATIONS AND WARRANTIES			80
	Section 3.01	Organization; Powers; Regulatory Licenses	81
	Section 3.02	Authorization; Enforceability	82
	Section 3.03	No Conflicts; No Default	82
	Section 3.04	Financial Statements	82
	Section 3.05	Properties	82
	Section 3.06	Intellectual Property	83
	Section 3.07	Equity Interests and Subsidiaries	84
	Section 3.08	Litigation; Compliance with Legal Requirements	84
	Section 3.09	Agreements	85
	Section 3.10	Federal Reserve Regulations	85
	Section 3.11	Investment Company Act, etc.	85
	Section 3.12	[Reserved]	85
	Section 3.13	Taxes	85
	Section 3.14	No Material Misstatements	86
	Section 3.15	Labor Matters	86
	Section 3.16	Solvency	86
	Section 3.17	Employee Benefit Plans	87
	Section 3.18	Environmental Matters	88
	Section 3.19	Insurance	88
	Section 3.20	Mortgages	88
	Section 3.21	Anti-Terrorism Law; Foreign Corrupt Practices Act	89
	Section 3.22	Security Documents	90
	Section 3.23	No EEA Financial Institution	91
ARTICLE IV CONDITIONS TO CREDIT EVENTS			91
	Section 4.01	Conditions to Closing Date	91
	Section 4.02	Conditions to All Credit Events	97
ARTICLE V AFFIRMATIVE COVENANTS			97
	Section 5.01	Financial Statements, Reports, etc.	97
	Section 5.02	Litigation and Other Notices	100
	Section 5.03	Existence; Businesses and Properties	101
	Section 5.04	Insurance	101

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	Section 5.05	Obligations and Taxes	102
	Section 5.06	Employee Benefits	102
	Section 5.07	Maintaining Records; Access to Properties and Inspections; Annual Meetings	103
	Section 5.08	[Reserved]	103
	Section 5.09	Compliance with Environmental Laws; Environmental Reports	103
	Section 5.10	Compliance Policy	104
	Section 5.11	Additional Collateral; Additional Guarantors	104
	Section 5.12	Security Interests; Further Assurances	106
	Section 5.13	[Reserved].	107
	Section 5.14	Information Regarding Collateral	107
	Section 5.15	Obtaining Ratings.	107
	Section 5.16	Deposit Accounts	107
	Section 5.17	Compliance with Confirmation Order and Approved Plan	108
ARTICLE VI NEGATIVE COVENANTS			108
	Section 6.01	Indebtedness	108
	Section 6.02	Liens	111
	Section 6.03	Reserved	115
	Section 6.04	Investments, Loans and Advances	115
	Section 6.05	Mergers and Consolidations	117
	Section 6.06	Asset Sales	118
	Section 6.07	[Reserved]	119
	Section 6.08	Dividends	119
	Section 6.09	Transactions with Affiliates	120
	Section 6.10	Maximum Total Net Leverage Ratio	121
	Section 6.11	Prepayments of Other Indebtedness; Modifications of Organizational Documents, Acquisition and Certain Other Documents, etc.	121
	Section 6.12	Limitation on Certain Restrictions on Subsidiaries	122
	Section 6.13	Limitation on Issuance of Capital Stock	123
	Section 6.14	Business	123
	Section 6.15	Limitation on Accounting Changes	123
	Section 6.16	Fiscal Periods	124

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	Section 6.17	No Further Negative Pledge	124
	Section 6.18	Anti-Terrorism Law; Anti-Money Laundering	124
	Section 6.19	Embargoed Person	124
	Section 6.20	Compliance with Canadian Pension Plans	125
ARTICLE VII GUARANTEE			125
	Section 7.01	The Guarantee	125
	Section 7.02	Obligations Unconditional	125
	Section 7.03	Reinstatement	127
	Section 7.04	Subrogation; Subordination	127
	Section 7.05	Remedies	127
	Section 7.06	Instrument for the Payment of Money	127
	Section 7.07	Continuing Guarantee	127
	Section 7.08	General Limitation on Guarantee Obligations	128
	Section 7.09	Right of Contribution	128
	Section 7.10	Release of Guarantors	128
ARTICLE VIII EVENTS OF DEFAULT			128
	Section 8.01	Events of Default	128
	Section 8.02	Rescission	132
	Section 8.03	Reserved	133
	Section 8.04	Application of Proceeds	133
ARTICLE IX THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT			134
	Section 9.01	Appointment	134
	Section 9.02	Agent in Its Individual Capacity	135
	Section 9.03	Exculpatory Provisions	135
	Section 9.04	Reliance by Agent	137
	Section 9.05	Delegation of Duties	138
	Section 9.06	Successor Agent	138
	Section 9.07	Non-Reliance on Agent and Other Lenders	139
	Section 9.08	Indemnification	139
	Section 9.09	Lender Action	140
	Section 9.10	Withholding Taxes	140
	Section 9.11	Lender’s Representations, Warranties and Acknowledgements	140
	Section 9.12	Security Documents and Guarantee	141

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	Section 9.13	Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim.	143
	Section 9.14	Hypothecary Representative	144
	Section 9.15	Intercreditor Agreement	145
ARTICLE X MISCELLANEOUS			146
	Section 10.01	Notices	146
	Section 10.02	Waivers; Amendment	148
	Section 10.03	Expenses; Indemnity; Damage Waiver	150
	Section 10.04	Successors and Assigns	153
	Section 10.05	Survival of Agreement	159
	Section 10.06	Counterparts; Integration; Effectiveness	159
	Section 10.07	Severability	160
	Section 10.08	Right of Setoff; Marshalling; Payments Set Aside	160
	Section 10.09	Governing Law; Jurisdiction; Waiver of Jury Trial; Consent to Service of Process	160
	Section 10.10	Waiver of Jury Trial	162
	Section 10.11	Headings	162
	Section 10.12	Confidentiality	163
	Section 10.13	Interest Rate Limitation	163
	Section 10.14	Assignment and Assumption	163
	Section 10.15	Obligations Absolute	164
	Section 10.16	Waiver of Defenses; Absence of Fiduciary Duties	164
	Section 10.17	Reinstatement	165
	Section 10.18	USA Patriot Act	165
	Section 10.19	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	165
	Section 10.20	Collateral Agency and Intercreditor Agreement	166
	Section 10.21	Certain ERISA Matters	166

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ANNEXES
Annex I	Initial Lenders and Commitments
SCHEDULES
Schedule 1.01(a)	Material Property
Schedule 1.01(b)	Guarantors
Schedule 1.01(c)	Pledgors
Schedule 1.01(d)	Data Center Leases
Schedule 3.07(a)	Subsidiaries
Schedule 3.07(b)	Corporate Organizational Chart
Schedule 3.09	Material Agreements
Schedule 3.18	Environmental Matters
EXHIBITS
Exhibit A	Form of Assignment and Assumption
Exhibit B	Form of Solvency Certificate
Exhibit C	Form of Compliance Certificate
Exhibit D	Form of Intercompany Note
Exhibit E-1	Form of Perfection Certificate
Exhibit E-2	Form of Perfection Certificate Supplement
Exhibit F	[Reserved]
Exhibit G	[Reserved]
Exhibit H	[Reserved]
Exhibit I	Form of Note
Exhibit J	[Reserved]
Exhibit K	[Reserved]
Exhibit L-1	Form of U.S. Tax Compliance Certificate (Foreign Lenders that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit L-2	Form of U.S. Tax Compliance Certificate (Foreign Participants that are not Partnerships for U.S. Federal Income Tax Purposes)
Exhibit L-3	Form of U.S. Tax Compliance Certificate (Foreign Participants that are Partnerships for U.S. Federal Income Tax Purposes)
Exhibit L-4	Form of U.S. Tax Compliance Certificate (Foreign Lenders that are Partnerships for U.S. Federal Income Tax Purposes)

vi

SECOND OUT TERM LOAN CREDIT AGREEMENT

This SECOND OUT TERM LOAN CREDIT AGREEMENT (this “Agreement”) dated as of May 8, 2020, among Internap Holding LLC, a Delaware limited liability company (f/k/a Internap Corporation) (“Borrower”), the guarantors from time to time party hereto, the several banks and other financial institutions from time to time party hereto (as further defined in Section 1.01, the “Lenders”) and Wilmington Trust, National Association, as administrative agent for the Lenders (solely in such capacity, the “Administrative Agent”) and as collateral agent for the Secured Parties (solely in such capacity, the “Collateral Agent”).

WITNESSETH:

WHEREAS, on March 16, 2020 (the “Petition Date”), Borrower and the Guarantors (each, a “Debtor” and collectively, the “Debtors”) commenced Chapter 11 Case Nos. 20-10805, 20-10806, 20-22393, 20-22394, 20-22396, 20-22398, and 20-22399, as administratively consolidated at Chapter 11 Case No. 20-22393 (collectively, the “Chapter 11 Cases” and each individually, a “Chapter 11 Case”) in the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) and have continued in the possession of their assets and management of their businesses pursuant to Sections 1107 and 1108 of the Bankruptcy Code;

WHEREAS, in connection with the Chapter 11 Cases, Borrower, the Guarantors and certain creditor parties entered into the Restructuring Support Agreement dated as of March 13, 2020 which provides for the implementation of a restructuring pursuant to which, among other things, Borrower and Guarantors will enter into certain financing arrangements pursuant to the Debtors’ Joint Prepackaged Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code (including all annexes, exhibits, schedules and supplements thereto, in each case, as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date hereof, the “Prepackaged Plan”);

WHEREAS, on May 8, 2020, the Bankruptcy Court entered the Confirmation Order (as hereinafter defined) approving the Debtors’ Joint Plan of Reorganization Pursuant to Chapter 11 of the Bankruptcy Code (the “Approved Plan”);

WHEREAS, on the date hereof, Borrower was converted to a limited liability company under the Delaware Limited Liability Company Act, with the name Internap Holding LLC, by filing a certificate of conversion and certificate of formation with the Secretary of State of the State of Delaware;

WHEREAS, pursuant to the Prepackaged Plan, Borrower, the Guarantors, the Lenders and the Agents are entering into this Agreement pursuant to which a portion of the claims of the Lenders in connection with the Chapter 11 Cases shall be exchanged for second out term loans hereunder, and the Lenders shall be deemed to have made term loans to Borrower hereunder in an aggregate principal amount of $225,000,000 (the “Facility”);

WHEREAS, substantially concurrently herewith, Borrower, the Guarantors, the First Out Term Loan Lenders, the First Out Term Loan Administrative Agent (each such term as defined herein) and the Collateral Agent are entering into the Senior Secured Term Loan Credit Agreement (as defined herein) pursuant to which the First Out Term Loan Lenders shall make available (or shall be deemed to make available) to Borrower the First Out Term Loans in the aggregate principal amount of $75,100,000 (the “First Out Term Loan Facility”);

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WHEREAS, subject to the terms hereof, Borrower and the Guarantors have agreed to secure all of their Obligations under the Loan Documents by granting to the Collateral Agent, for the benefit of the Administrative Agent, the Collateral Agent and the other Secured Parties, a security interest in and lien upon all of their now existing and hereafter-acquired property; and

WHEREAS, the Lenders are willing to extend such credit to Borrower on the terms and subject to the conditions set forth herein.

Accordingly, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01        Defined Terms.

As used in this Agreement, the following terms have the meanings specified below:

“ABR” when used in reference to any Loan or Borrowing, is used when such Loan comprising such Borrowing is, or the Loans comprising such Borrowing are, bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with the provisions of Article II.

“ABR Loan” means any Loan bearing interest at a rate determined by reference to Alternate Base Rate.

“Ad Hoc Group of Lenders” means those certain Lenders on the Closing Date represented by Gibson, Dunn & Crutcher, LLP, as counsel, and Rothschild & Co., as financial advisor.

“Adjusted LIBOR Rate” means, with respect to any applicable Borrowing for any Interest Period, an interest rate per annum (rounded upward, if necessary, to the next 1/100th of 1%) determined by the Administrative Agent to be equal to (x) the LIBOR Rate for such Eurodollar Borrowing in effect for such Interest Period divided by (y) 1 minus the Statutory Reserves (if any) for such Eurodollar Borrowing for such Interest Period; providedthat in no event shall the Adjusted LIBOR Rate be less than one percent per annum in respect of the Loans.

“Administrative Agent” has the meaning set forth in the preamble hereto and includes each other Person appointed as the successor administrative agent pursuant to Article IX.

“Administrative Agent Fees” has the meaning set forth in Section 2.05.

“Administrative Agent’s Account” means the account designated from time to time in writing as the “Administrative Agent’s Account” by the Administrative Agent to the other parties hereto.

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“Administrative Questionnaire” means an administrative questionnaire in the form supplied from time to time by the Administrative Agent.

“Advisors” means legal counsel (including local, regulatory, foreign and in-house counsel), auditors, accountants, consultants, appraisers, engineers or other advisors.

“Affiliate” means, when used with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified; provided,however, that for purposes of Section 6.09, the term “Affiliate” shall also include (i) any Person that directly or indirectly owns more than 10% of any class of Equity Interests of the Person specified or (ii) any Person that is an officer or director of the Person specified provided, further, however, that for so long as such Persons are Lenders hereunder, none of the Persons (or their Affiliates) owning Equity Interests in Borrower shall constitute an Affiliate of the Loan Parties for purposes of the Loan Documents.

“Agents” means the Administrative Agent and the Collateral Agent; and “Agent” means either or both of them as the context requires.

“Agreement” has the meaning set forth in the preamble hereto.

“Alternate Base Rate” means, for any day, a rate per annum (rounded upward, if necessary, to the next 1/100th of 1%) equal to the greatest of (a) the Base Rate in effect on such day, (b) with respect to the Loans issued on the Closing Date, 2.00% per annum, (c) the Federal Funds Effective Rate in effect on such day plus 0.50% and (d) the Adjusted LIBOR Rate for a Eurodollar Loan with a one-month interest period (or if such day is not a Business Day, the immediately preceding Business Day) plus 1.00%.  If the Administrative Agent shall have determined (which determination shall be conclusive and binding absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate or the Adjusted LIBOR Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (c) or (d),  as applicable, of the preceding sentence until the circumstances giving rise to such inability no longer exist; provided that in no event shall the Alternate Base Rate be less than zero percent per annum.  Any change in the Alternate Base Rate due to a change in the Base Rate, the Federal Funds Effective Rate or the then applicable or the Adjusted LIBOR Rate shall be effective on the effective date of such change in the Base Rate, the Federal Funds Effective Rate or the then applicable Adjusted LIBOR Rate, respectively.

“Anti-Terrorism Laws” has the meaning set forth in Section 3.21.

“Applicable Cash Margin” means, for any day, with respect to any Loan that is an ABR Loan 2.00% per annum, and any Loan that is a Eurodollar Loan, 3.00% per annum.

“Approved Electronic Communications” means any notice, demand, communication, information, document or other material that any Loan Party provides to the Administrative Agent pursuant to any Loan Document or the transactions contemplated therein, which is distributed to the Agents or the Lenders by means of electronic communications pursuant to Section 10.01(b).

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“Approved Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or investing in bank and other commercial loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Asset Sale” means (a) any Disposition of any Property by any Company and (b) any issuance or sale by any Company of any Equity Interests of any Subsidiary of Borrower, in each case, to any Person other than (x) a Loan Party or (y) in the case of a Wholly Owned Subsidiary of Borrower that is not a Loan Party, another Wholly Owned Subsidiary of Borrower that is not a Loan Party

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required pursuant to Section 10.04(b)), and accepted by the Administrative Agent, substantially in the form of Exhibit A, or such other form as shall be approved by the Administrative Agent from time to time.

“Auction” has the meaning set forth in Section 10.04(j).

“Bailee Letter” has the meaning set forth in the Security Agreement.

“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.

“Bankruptcy Code” means Chapter 11 of Title 11 of the United States Code, as amended from time to time and any successor statute and all rules and regulations promulgated thereunder.

“Bankruptcy Court” has the meaning set for the in the recitals to this Agreement.

“Base Rate” means, for any day, the prime rate published in The Wall Street Journal for such day; providedthat if The Wall Street Journal ceases to publish for any reason such rate of interest, “Base Rate” means the prime lending rate as set forth on the Bloomberg page PRIMBB Index (or successor page) for such day (or such other service as determined by the Administrative Agent from time to time for purposes of providing quotations of prime lending interest rates); each change in the Base Rate shall be effective on the date such change is effective.  The prime rate is not necessarily the lowest rate charged by any financial institution to its customers.

“Benchmark Replacement” means the sum of: (a) the alternate benchmark rate (which may be a SOFR-Based Rate) that has been selected by the Administrative Agent and Borrower 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 and/or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to the LIBOR Rate for U.S. dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than 1.00%, the Benchmark Replacement will be deemed to be 1.00% for the purposes of this Agreement; provided, further, that any such Benchmark Replacement shall be administratively feasible as determined by the Administrative Agent in its reasonable discretion.

4

“Benchmark Replacement Adjustment” means the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBOR Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBOR Rate with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time, provided that any such Benchmark Replacement Adjustment shall be administratively feasible as determined by the Administrative Agent in its reasonable discretion.

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

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the LIBOR Rate permanently or indefinitely ceases to provide the Screen Rate; or

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the LIBOR Rate:

(1) a public statement or publication of information by or on behalf of the administrator of the LIBOR Rate announcing that such administrator has ceased or will cease to provide the LIBOR Rate, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBOR Rate;

5

(2) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBOR Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the LIBOR Rate, a resolution authority with jurisdiction over the administrator for the LIBOR Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the LIBOR Rate, in each case which states that the administrator of the LIBOR Rate has ceased or will cease to provide the LIBOR Rate permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBOR Rate; and/or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBOR Rate announcing that the LIBOR Rate 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 ninetieth (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 ninety (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 Administrative Agent or the Required Lenders, as applicable, by notice to Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.

“Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the LIBOR Rate and solely to the extent that the LIBOR Rate 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 the LIBOR Rate for all purposes hereunder in accordance with Section 2.11 and (y) ending at the time that a Benchmark Replacement has replaced the LIBOR Rate for all purposes hereunder pursuant to Section 2.11.

“Board” means the Board of Governors of the Federal Reserve System of the United States.

“Board of Directors” means, with respect to any Person, (i) in the case of any corporation, the board of directors of such Person, (ii) in the case of any limited liability company, the board of managers or board of directors, as applicable, of such Person, or if such limited liability company does not have a board of managers or board of directors, the functional equivalent of the foregoing, (iii) in the case of any partnership, the board of directors or board of managers, as applicable, of the general partner of such Person and (iv) in any other case, the functional equivalent of the foregoing.

“Borrower” has the meaning set forth in the preamble hereto.

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“Borrowing” means Loans of the same Class and Type, made, deemed made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

“Business Day” means any day other than a Saturday, Sunday or other day on which banks in New York City or Atlanta, Georgia are authorized or required by law or other governmental action to close; provided,however, that when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.

“Canadian Anti-Terrorism Laws” has the meaning set forth in Section 3.21.

“Canadian Deed of Hypothec” means, collectively, the deed of hypothec, among certain Loan Parties and the Collateral Agent, acting as hypothecary representative, together with each additional deed of hypothec executed and delivered pursuant to this Agreement.

“Canadian Loan Party” means any Loan Party which is organized under the laws of Canada or any Province or Territory of Canada.

“Canadian Pension Plan” means each “registered pension plan” that has a “defined benefit provision” (as such terms are defined under the Income Tax Act (Canada)) that is maintained or contributed to by any Company for its employees or former employees, but does not include the Canada Pension Plan or the Quebec Pension Plan as maintained by the Government of Canada or the Province of Quebec, respectively.

“Canadian Sanctions” has the meaning set forth in Section 3.21.

“Capital Expenditures” means, without duplication, (a) any cash expenditure for any purchase or other acquisition of any asset including capitalized leasehold improvements, which would be classified as a fixed or capital asset on a consolidated balance sheet of Borrower and its Subsidiaries prepared in accordance with GAAP and (b) Capital Lease Obligations and Synthetic Lease Obligations, but excluding (i) expenditures made in connection with the replacement, substitution or restoration of Property pursuant to Section 2.10(d), (ii) the purchase price of equipment that is purchased substantially contemporaneously with the trade-in of existing equipment to the extent that the gross amount of such purchase price is reduced by the credit granted by the seller of such equipment for the equipment being traded in at such time, (iii) amounts expended by any Company to purchase assets constituting an ongoing business, (iv) the purchase of assets to the extent financed with the proceeds of Dispositions that are not required to be mandatorily prepaid pursuant to Section 2.10, (v) expenditures relating to the construction or acquisition of any asset that has been transferred to a Person other than Borrower and its Subsidiaries during the same fiscal year in which such expenditures were made, or in the immediately succeeding fiscal year, pursuant to a sale and leaseback transaction consummated prior to the New Incremental Loan Closing Date (as defined in the Pre-Petition Credit Agreement).

“Capital Lease” means, with respect to any Person, any lease of, or other arrangement conveying the right to use, any Property by such Person as lessee that has been or should be accounted for as a capital lease on a balance sheet of such Person prepared in accordance with GAAP.

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“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any Capital Lease, any lease entered into as part of any sale and leaseback transaction or any Synthetic Lease, or a combination thereof, which obligations are (or would be, if such Synthetic Lease or other lease were accounted for as a Capital Lease) required to be classified and accounted for as Capital Leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof (or the amount that would be capitalized, if such Synthetic Lease or other lease were accounted for as a Capital Lease) determined in accordance with GAAP.

“Capital Requirements” means, as to any Person, any matter, directly or indirectly, (i) regarding capital adequacy, capital ratios, capital or liquidity requirements, the calculation of such Person’s capital, liquidity or similar matters, or (ii) affecting the amount of capital required to be obtained or maintained by such Person or any Person Controlling such Person (including any direct or indirect holding company), or the manner in which such Person or any Person Controlling such Person (including any direct or indirect holding company) allocates capital to any of its contingent liabilities (including letters of credit), advances, acceptances, commitments, assets or liabilities.

“Capitalized Software Expenditures” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by Borrower and its Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of Borrower and its Subsidiaries.

“Cash Equivalents” means, as of any date of determination and as to any Person, any of the following:  (a) United States and Canadian dollars (including amounts denominated in such currencies that are deposited into a deposit account (within the meaning of the UCC)); (b) in the case of any Foreign Subsidiary, (x) such local currencies held by it from time to time in the ordinary course of business and not for speculation (including any amounts denominated in such currencies that are deposited with any bank that serves as a depository bank for, among other things, payroll accounts maintained by a Foreign Subsidiary in the applicable jurisdiction in the ordinary course of business) or (y) customarily utilized high-quality investments in securities denominated in such local currencies with average maturities of not more than twenty (20) days from the date of acquisition held by such Foreign Subsidiary from time to time in the ordinary course of business and not for speculation; (c) marketable securities issued, or directly, unconditionally and fully guaranteed or insured, by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one (1) year from the date of acquisition by such Person, (d) money market deposits, time deposits, eurodollar time deposits, overnight bank deposits and certificates of deposit of any Lender or any domestic or foreign bank having, or which is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia or any U.S. branch of a foreign bank having, capital and surplus aggregating in excess of $250,000,000 and a rating of “A” (or such other similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) with maturities of not more than one (1) year from the date of acquisition by such Person, (e) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (c) above entered into with any Person meeting the qualifications specified in clause (d) above, which repurchase obligations are secured by a valid perfected security interest in the underlying securities, (f) commercial paper issued by any Person incorporated in the United States rated at least A-2 or the equivalent thereof by Standard & Poor’s Rating Service (“S&P”) or at least P-2 or the equivalent thereof by Moody’s Investors Service Inc. (“Moody’s”) (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency), and in each case maturing not more than one (1) year after the date of acquisition by such Person, (g) marketable short-term money market and similar highly liquid funds having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (h) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having a rating of at least P-2 or A-2 from either Moody’s or S&P (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) with maturities of not more than one (1) year from the date of acquisition; (i) Investments with average maturities of not more than one (1) year from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (j) investment funds investing substantially all of their assets in Cash Equivalents of the kinds described in clauses (a) through (i) of this definition; and (k) solely with respect to any Foreign Subsidiary or Investments made in a country outside the United States of America, (x) investments of the type and maturity described in clauses (a) through (j) above of foreign obligors, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (y) other short-term investments utilized by Foreign Subsidiaries in accordance with normal investment practices for cash management in customarily utilized high-quality investments analogous to the foregoing investments in clauses (a) through (j).

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“Cash Interest Expense” means, for any period, Consolidated Interest Expense for such period, less the sum of (a) interest on any debt paid by the increase in the principal amount of such debt including by issuance of additional debt of such kind or the accretion or capitalization of interest as principal and (b) other than to the extent paid in cash or cash equivalents, items described in clause (f) of the definition of “Consolidated Interest Expense.”

“Cash Management Services” means (a) credit cards for commercial customers (including, without limitation, commercial credit cards and purchasing cards), (b) stored value cards and (c) treasury management services (including, without limitation, controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository network services).

“Casualty Event” means any loss of title (other than through a consensual Disposition of such Property in accordance with this Agreement) or any loss of or damage to or any destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any Property of any Company.  “Casualty Event” shall include any taking of all or any part of any Real Property of any Person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Legal Requirement, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of any Person or any part thereof by any Governmental Authority, or any settlement in lieu thereof.

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“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601 et seq.

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

(a)         any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan of such person or group or its respective subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause such person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of Voting Stock of Borrower representing more than 50% of the voting power of the total outstanding Voting Stock of Borrower (and taking into account all such securities that such person or group has the right to acquire (whether pursuant to an option right or otherwise));

(b)         during any period of twelve (12) consecutive months, a majority of the members of the Board of Directors of Borrower cease to be composed of individuals (i) who were members of that Board of Directors at the commencement of such period, (ii) whose election or nomination to that Board of Directors was approved by individuals referred to in preceding clause (i) constituting at the time of such election or nomination at least a majority of that Board of Directors or (iii) whose election or nomination to that Board of Directors was approved by individuals referred to in preceding clauses (i) and (ii) constituting at the time of such election or nomination at least a majority of that Board of Directors; or

(c)          any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of Borrower, or control over the equity securities of Borrower entitled to vote for members of the Board of Directors of Borrower on a fully-diluted basis (and taking into account all such securities that such Person or Persons have the right to acquire (whether pursuant to an option right or otherwise)) representing 40% or more of the combined voting power of such securities.

“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, order, rule, regulation, policy, or treaty by any Governmental Authority, (b) any change in any law, order, 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; providedthat notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

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“Chapter 11 Cases” has the meaning set forth in the preamble hereto.

“Charges” has the meaning set forth in Section 10.13.

“Claims” has the meaning set forth in Section 10.03(b).

“Class,” when used in reference to any Loan or Borrowing, refers to when such Loan, or the Loans comprising such Borrowing, Loans, Incremental Loans or Other Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Loan Commitment, or Other Loan Commitment.

“Closing Date” means May 8, 2020.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” means, collectively, all of the Security Agreement Collateral, the Material Property and all other Property of whatever kind and nature, whether now existing or hereafter acquired, pledged or purported to be pledged as collateral or otherwise subject to a security interest or purported to be subject to a security interest under any Security Document.

“Collateral Agent” has the meaning set forth in the preamble hereto.

“Commitment” means, with respect to any Lender, such Lender’s Loan Commitment or Other Loan Commitment.

“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 10.01(b).

“Communications Act” means, collectively, the Communications Act of 1934, as amended by the Telecommunications Act of 1996, and as further amended, and the rules and regulations promulgated thereunder, including, without limitation, C.F.R. Title 47 and the rules, regulations and decisions by the FCC, in each case, as from time to time in effect.

“Companies” means Borrower and its Subsidiaries; and “Company” means any one of them.

“Competitor” means (i) any competitor of Borrower that is identified by Borrower to the Administrative Agent in writing on or prior to the Closing Date or from time to time thereafter (subject in the case of competitors identified after the Closing Date to the consent of the Administrative Agent, such consent not to be unreasonably withheld, delayed or conditioned) and (ii) any affiliate of any such competitor that is clearly identifiable as such, based solely on its name (other than any such affiliate that is engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds, and similar extensions of credit in the ordinary course of business, as long as the power to direct or cause the direction of the investment policies of such affiliate is not possessed by any other such competitor or affiliate thereof); provided that no written notice delivered pursuant to this definition shall apply retroactively to disqualify any Person that has acquired an assignment or participation interest in the Loans prior to the delivery of such notice.

“Compliance Certificate” means a certificate of a Financial Officer of Borrower substantially in the form of Exhibit C or such other form as may be approved by the Administrative Agent and Borrower.

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“Compounded SOFR” means the compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate (which may include compounding in arrears with a lookback and/or suspension period as a mechanism to determine the interest amount payable prior to the end of each Interest Period) being established by the Administrative Agent in accordance with:

(1)          the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining Compounded SOFR; provided that:

(2)          if, and to the extent that, the Administrative Agent determines that Compounded SOFR cannot be determined in accordance with clause (1) above, then the rate, or methodology for this rate, and conventions for this rate that the Administrative Agent determines in its reasonable discretion are substantially consistent with any evolving or then-prevailing market convention for determining Compounded SOFR for U.S. dollar-denominated syndicated credit facilities at such time;

provided, further, that if the Administrative Agent decides that any such rate, methodology or convention determined in accordance with clause (1) or clause (2) is not administratively feasible for the Administrative Agent, then Compounded SOFR will be deemed unable to be determined for purposes of the definition of “SOFR-Based Rate.”

“Confirmation Order” means the Findings of Fact, Conclusions of Law and Order (i) approving the Debtors’ (a) Disclosure Statement pursuant to Sections 1125 and 1126(b) of the Bankruptcy Code, (b) Solicitation of Votes and Voting Procedures, and (c) Forms of Ballots, and (ii) Confirming Joint Prepackaged Chapter 11 Plan of Checkout Holding Corp. and its Affiliated Debtors Docket No. 198 entered by the Court on May 8, 2020 in the Chapter 11 Cases.

“Consolidated Amortization Expense” means, for any period, the amortization expense (including the amortization of capitalized software expenses, internal labor costs and deferred financing fees) of Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated Current Assets” means, as at any date of determination, the total assets of Borrower and its Subsidiaries (other than cash, cash equivalents and marketable securities) which may properly be classified as current assets on a consolidated balance sheet of Borrower and its Subsidiaries in accordance with GAAP.

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“Consolidated Current Liabilities” means, as at any date of determination, the total liabilities of Borrower and its Subsidiaries which may properly be classified as current liabilities on a consolidated balance sheet of Borrower and its Subsidiaries in accordance with GAAP excluding, to the extent otherwise included therein (a) the current portion of any Funded Debt, (b) the current portion of interest (excluding interest that is past due and unpaid), (c) liabilities in respect of unpaid earn-outs, (d) the current portion of deferred acquisition costs, (e) the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to any consummated acquisition, and (f) accruals for deferred taxes based on income or profits.

“Consolidated Depreciation Expense” means, for any period, the depreciation expense of Borrower and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP.

“Consolidated EBITDA” means, for any period, Consolidated Net Income for such period, adjusted by (x) adding thereto, without duplication, in each case, except with respect to sub clauses (m) or (p) below, only to the extent (and in the same proportion) deducted in determining such Consolidated Net Income (and with respect to the portion of Consolidated Net Income attributable to any Subsidiary of Borrower only if a corresponding amount of cash would be permitted to be distributed to Borrower by such Subsidiary by operation of the terms of its Organizational Documents and all agreements, instruments, Orders and other Legal Requirements applicable to such Subsidiary or its equityholders during such period):

(a)          Consolidated Interest Expense (including realized losses in respect of any Obligation under Permitted Hedging Agreements as determined in accordance with GAAP) for such period;

(b)          Consolidated Amortization Expense for such period (including amortization of Capitalized Software Expenditures, internal labor costs and amortization of deferred financing fees or costs);

(c)          Consolidated Depreciation Expense for such period;

(d)          Consolidated Tax Expense for such period;

(e)          non-recurring costs and expenses directly incurred, within 120 days following the Closing Date, in connection with the Transactions;

(f)          transaction costs, fees and expenses in connection with any Disposition, Investment, Equity Issuances or the incurrence of any Indebtedness (including a refinancing thereof), in each case permitted hereunder and in each case whether or not consummated;

(g)          transaction costs, fees and expenses in connection with any contemplated Investment constituting an acquisition permitted hereunder that is not consummated for any Test Period;

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(h)          transaction costs, fees and expenses in connection with any contemplated Investment permitted under Section 6.04, Equity Issuances or the incurrence or any amendment of any Indebtedness permitted hereunder that is not consummated;

(i)          nonrecurring or extraordinary cash losses and expenses not to exceed $7,500,000 for any Test Period;

(j)          restructuring charges or reserves incurred during such period determined on a consolidated basis in accordance with GAAP;

(k)          non-cash compensation expense (including deferred non-cash compensation expense), or other non-cash expenses or charges, arising from the sale or issuance of Equity Interests, the granting of stock options, and the granting of stock appreciation rights and similar arrangements (including any repricing, amendment, modification, substitution, or change of any such Equity Interests, stock option, stock appreciation rights, or similar arrangements) minus the amount of any such expenses or charges when paid in cash to the extent not deducted in the computation of Consolidated Net Income determined on a consolidated basis in accordance with GAAP;

(l)           the after-tax effect of any loss on sales of fixed assets or write-downs of fixed or intangible assets determined on a consolidated basis in accordance with GAAP;

(m)          cash receipts (or any netting arrangements resulting in reduced cash expenditures) not included in the calculation of Consolidated Net Income in any period to the extent non-cash gains relating to such income were deducted in the calculation of Consolidated EBITDA pursuant to paragraph (y) below for any previous period and not added back;

(n)          any costs or expenses incurred by Borrower or any Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any severance agreement or any stock subscription or shareholder agreement, to the extent that such costs or expenses are non-cash or otherwise funded with cash proceeds contributed to the capital of Borrower or Net Cash Proceeds of an issuance of Equity Interests of Borrower (other than Disqualified Capital Stock);

(o) any net pension or other post-employment benefit costs representing amortization of unrecognized prior service costs, actuarial losses, including amortization of such amounts arising in prior periods, amortization of the unrecognized net obligation (and loss or cost) existing at the date of initial application of FASB Accounting Standards Codification 715, and any other items of a similar nature;

(p)          without duplication, any restructuring, cost saving initiative or other initiative projected by Borrower or any Subsidiary in good faith to be realized as a result of actions that have been taken or initiated or are expected to be taken (in the good faith determination of Borrower), including any cost savings, expenses and charges (including restructuring and integration charges) in connection with, or incurred by or on behalf of, any joint venture of Borrower or any of its Subsidiaries (whether accounted for on the financial statements of any such joint venture or the applicable Company) with respect to any restructuring, cost saving initiative or other initiative whether initiated before, on or after the Closing Date, within 12 months after such restructuring, cost saving initiative or other initiative (which cost savings shall be added to Consolidated EBITDA until fully realized and calculated on a pro forma basis as though such cost savings had been realized on the first day of the relevant period), net of the amount of actual benefits realized from such actions; provided that (A) such cost savings are reasonably quantifiable and factually supportable, and identified and certified by the chief financial officer or equivalent officer of Borrower as meeting the requirements of this clause (p); (B) the share of any such cost savings, expenses and charges with respect to a joint venture that are to be allocated to Borrower or any of its Subsidiaries shall not exceed the total amount thereof for any such joint venture multiplied by the percentage of income of such venture expected to be included in Consolidated EBITDA for the relevant Test Period; and (C) the aggregate amount added back pursuant to this clause (p) for any Test Period shall not exceed 20% of Consolidated EBITDA for such Test Period (calculated prior to taking into account this clause (p));

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(q)          the after-tax effect of any loss from the early purchase and retirement or extinguishment of Indebtedness;

(r)          charges incurred during such period for which insurance or indemnity recovery is actually received in cash during such period;

(s)          minority interest expense deducted and any other deductions attributable to minority interests and joint ventures (and not otherwise included in Consolidated Net Income);

(t)           costs, charges and expenses in connection with fresh-start accounting (or similar treatments);

(u)          with respect to Investments in any Person (other than a Subsidiary), net income during such period to the extent received in cash or Cash Equivalents during such period (and not otherwise included in Consolidated Net Income); and

(v)         the aggregate amount of all other non-cash items reducing Consolidated Net Income (excluding any non-cash charge that results in an accrual of a reserve for cash charges in any future period or the amortization of a prepaid cash item that was paid in a prior period or any write-down or write-off of assets for such period); and

(w)         subtracting therefrom (A) the aggregate amount of all non-cash items increasing Consolidated Net Income (other than the accrual of revenue or recording of receivables in the ordinary course of business) for such period, excluding any such income that represents the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period (other than any such cash charge that has not increased Consolidated EBITDA); (B) the after-tax effect of any gain on sales of assets outside of the ordinary course of business; (C) realized gains in respect of obligations under Permitted Hedging Agreements as determined in accordance with GAAP; and (D) the after-tax effect of any income from the early purchase and retirement or extinguishment of Indebtedness.

Notwithstanding anything to the contrary herein, “Consolidated EBITDA” for the fiscal quarter ending on (i) September 30, 2020, shall be equal to Consolidated EBITDA for such fiscal quarter then ended, multiplied by four, (ii) December 31, 2020, shall be equal to Consolidated EBITDA for the two fiscal quarters then ended, multiplied by two, (iii) March 31, 2021, shall be equal to Consolidated EBITDA for the three fiscal quarter period then ended, multiplied by 4/3 and (iv) June 30, 2021, shall be equal to Consolidated EBITDA for the four fiscal quarter period then ended.

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“Consolidated Indebtedness” means, as at any date of determination, without duplication, the aggregate amount of all Indebtedness of Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP.

“Consolidated Interest Expense” means, for any period, the total consolidated interest expense, net of total interest income, of Borrower and its Subsidiaries for such period determined on a consolidated basis in accordance with GAAP plus, without duplication:

(a)          imputed interest on Capital Lease Obligations of Borrower and its Subsidiaries for such period;

(b)          commissions, discounts and other fees and charges owed by Borrower or any of its Subsidiaries with respect to letters of credit securing financial obligations, bankers’ acceptance financing, receivables financings and similar credit transactions for such period;

(c)        cash contributions to any employee stock ownership plan or similar trust made by Borrower or any of its Subsidiaries to the extent such contributions are used by such plan or trust to pay interest or fees to any Person (other than Borrower or any of its Wholly Owned Subsidiaries) in connection with Indebtedness incurred by such plan or trust for such period;

(d)          all interest paid or payable with respect to discontinued operations of Borrower or any of its Subsidiaries for such period;

(e)          the interest portion of any payment obligations of Borrower or any of its Subsidiaries for such period deferred for payment at any future time, whether or not such future payment is subject to the occurrence of any contingency, and includes any and all payments representing the purchase price and any assumptions of Indebtedness and/or Contingent Obligations; and

(f)          without duplication, (i) all interest on any Indebtedness of Borrower or any of its Subsidiaries of the type described in clause (e) or (j) of the definition of “Indebtedness” for such period and (ii) all cash payments in respect of any Disqualified Capital Stock during such period.

“Consolidated Net Income” means, for any period, the consolidated net income (or loss) of Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP; provided that there shall be excluded from such net income (to the extent otherwise included therein), without duplication:

(a)          the net income (or loss) of any Person (other than Borrower or a Wholly Owned Subsidiary of Borrower) in which any Person other than Borrower or any of its Wholly Owned Subsidiaries has an ownership interest, except to the extent that cash or Cash Equivalents in an amount equal to any such income has actually been received by Borrower or (subject to clause (b) below) any of its Wholly Owned Subsidiaries from such Person during such period (or if not received in cash or Cash Equivalents but later converted into cash or Cash Equivalents during such period, upon such conversion);

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(b)          the gains, losses, charges or expenses due to (i) the early extinguishment of indebtedness or (ii) the application of “fresh-start” accounting (or similar accounting treatments);

(c)          earnings resulting from any reappraisal, revaluation or write-up of assets;

(d)         any extraordinary or nonrecurring noncash gain (or extraordinary or nonrecurring noncash loss), together with any related provision for taxes on any such noncash gain (or the tax effect of any such noncash loss), recorded or recognized by Borrower or any of its Subsidiaries during such period;

(e)          the cumulative effect of a change in accounting principles during such period to the extent included in Consolidated Net Income;

(f)          any income (loss) for such period attributable to the early extinguishment of Indebtedness, hedging agreements or other derivative instruments;

(g)         any gain (loss) on asset sales, disposals or abandonments (other than asset sales, disposals or abandonments in the ordinary course of business) or income (loss) from discontinued operations (but if such operations are classified as discontinued due to the fact that they are subject to an agreement to dispose of such operations, only when and to the extent such operations are actually disposed of);

(h)         any non-cash gain (loss) attributable to the mark to market movement in the valuation of hedging obligations or other derivative instruments pursuant to FASB Accounting Standards Codification 815-Derivatives and Hedging or mark to market movement of other financial instruments pursuant to FASB Accounting Standards Codification 825-Financial Instruments in such period; provided that any cash payments or receipts relating to transactions realized in a given period shall be taken into account in such period;

(i)          any non-cash gain (loss) related to currency remeasurements of Indebtedness, net loss or gain resulting from hedging agreements for currency exchange risk and revaluations of intercompany balances; and

(j)          any impairment charge or asset write-off or write-down (including related to intangible assets (including goodwill), long-lived assets, and investments in debt and equity securities).

There shall be excluded from Consolidated Net Income for any period the effects from applying acquisition method accounting, including applying acquisition method accounting to inventory, property and equipment, loans and leases, software and other intangible assets and deferred revenue (including deferred costs related thereto and deferred rent) required or permitted by GAAP and related authoritative pronouncements (including the effects of such adjustments pushed down to Borrower and its Subsidiaries), as a result of any Investment or the amortization or write-off of any amounts thereof.

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In addition, to the extent not already included in Consolidated Net Income, Consolidated Net Income shall include (i) the amount of proceeds received or due from business interruption insurance or reimbursement of expenses and charges that are covered by indemnification and other reimbursement provisions in connection with any acquisition or other Investment or any disposition of any asset permitted hereunder (net of any amount so added back in any prior period to the extent not so reimbursed within a one-year period) and (ii) the amount of any cash tax benefits related to the tax amortization of intangible assets in such period.

“Consolidated Tax Expense” means, for any period, the tax expense (including federal, state, local and foreign income taxes) of Borrower and its Subsidiaries, for such period, determined on a consolidated basis in accordance with GAAP.

“Contingent Obligation” means, as to any Person, any obligation, agreement, understanding or arrangement of such Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation, agreement, understanding or arrangement of such Person, whether or not contingent, (a) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth, net equity, liquidity, level of income, cash flow or solvency of the primary obligor, (c) to purchase or lease Property, securities or services primarily for the purpose of assuring the primary obligor of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, (d) with respect to bankers’ acceptances, letters of credit and similar credit arrangements, until a reimbursement or equivalent obligation arises (which reimbursement obligation shall constitute a primary obligation) or (e) otherwise to assure or hold harmless the primary obligor of any such primary obligation against loss (in whole or in part) in respect thereof; provided, however, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business or consistent with past practice or any product or service warranties given in the ordinary course of business or consistent with past practice.  The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation, or portion thereof, in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such Person may be liable, whether singly or jointly, pursuant to the terms of the instrument, agreements or other documents or, if applicable, unwritten agreement, evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise, and the terms “Controls”, “Controlling” and “Controlled” shall have meanings correlative thereto.

“Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the applicable Interest Period with respect to the LIBOR Rate.

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“Credit Event” means  the making (or deemed making) of a Loan by a Lender.

“Cumulative Credit Availability” means, as of any date, an amount (which shall not be less than zero), determined on a cumulative basis, equal to, without duplication:

(a)          the Retained Excess Cash Flow Amount; plus

(b)          the cumulative amount of Net Cash Proceeds received after the Closing Date that have been contributed as a capital contribution to Borrower, or otherwise received by Borrower in respect of the issuance of Qualified Capital Stock by Borrower, but excluding any such sale or issuance by Borrower of its Equity Interests upon exercise of any warrant or option to directors, officers or employees of any Company; plus

(c)          an amount equal to any cash or Cash Equivalents actually received by Borrower or any Subsidiary (or, if not received in cash or Cash Equivalents, converted by Borrower or any Subsidiary into cash or Cash Equivalents) in respect of any Investments made pursuant to Section 6.04(l) to the extent constituting a return of capital or other return with respect to such Investment; provided that in no case shall such amount exceed the amount of such Investment made pursuant to Section 6.04(l); minus

(d)          the cumulative amount of Investments made in reliance on Section 6.04(l), minus

(h)          Dividends paid pursuant to Section 6.08(e), minus

(j)          prepayments made pursuant to Section 6.11(a).

“Data Center Lease” means the Leases listed on Schedule 1.01(d) and any lease of a data center entered into by a Loan Party after the Closing Date (other than pay-as-you-go or partner site leases).

“Debt Issuance” means the incurrence by any Company of any Indebtedness after the Closing Date (other than as permitted by Section 6.01).

“Debt Service” means, for any period, Cash Interest Expense for such period plus scheduled principal amortization and mandatory principal repayments (whether pursuant to this Agreement or otherwise) of all Indebtedness for such period.

“Default” means any event, occurrence or condition which is, or upon notice, lapse of time or both would constitute, an Event of Default.

“Default Excess” has the meaning set forth in Section 2.16(c).

“Default Period” has the meaning set forth in Section 2.16(c).

“Default Rate” has the meaning set forth in Section 2.06(c).

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“Defaulted Loan” has the meaning set forth in Section 2.16(c).

“Defaulting Lender” means any Lender that (a) has failed to fund its portion of any Borrowing, unless the subject of a good faith dispute between Borrower and such Lender related hereto, (b) has notified Borrower, the Administrative Agent or any other Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under agreements in which it commits to extend credit generally, (c) has failed, within three (3) Business Days after written request by the Administrative Agent or Borrower, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans (unless the subject of a good faith dispute between Borrower and such Lender); provided that any such Lender shall cease to be a Defaulting Lender under this clause (c) upon receipt of such confirmation by the Administrative Agent or Borrower, (d) has otherwise failed to pay over to Borrower, the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due (unless the subject of a good faith dispute), (e) has (i) been adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its Properties or assets to be, insolvent or (ii) become the subject of a bankruptcy or other Insolvency Proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, unless, in the case of any Lender referred to in this clause (e), Borrower and the Administrative Agent shall be satisfied that such Lender intends, and has all approvals required to enable it, to continue to perform its obligations as a Lender hereunder; provided, however, that no Lender shall be deemed to be a Defaulting Lender under this clause (e) solely by virtue of an Undisclosed Administration or (f) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action.  For the avoidance of doubt, a Lender shall not be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in such Lender or its parent by a Governmental Authority; provided that, as of any date of determination, the determination of whether any Lender is a Defaulting Lender hereunder shall not take into account, and shall not otherwise impair, any amounts funded by such Lender which have been assigned by such Lender to an SPC pursuant to Section 10.04(h).  Any determination by the Administrative Agent that a Lender is a Defaulting Lender shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination by the Administrative Agent to Borrower and each other Lender.

“Deposit Account Control Agreement” has the meaning set forth in Section 5.17.

“Designated Cash Pay PIK Interest” has the meaning set forth in Section 2.06(a).

“Digital AZ Disposition” means the sale of the colocation business and related assets located in 2121 South Price Road, Chandler, Arizona to a third party pursuant to a purchase agreement reasonably acceptable to the Required Lenders.

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“Digital GA Disposition” means the sale of the colocation business and related assets located in 250 Williams Street, Atlanta, Georgia to a third party pursuant to a purchase agreement reasonably acceptable to the Required Lenders.

“DIP Credit Agreement” shall have the meaning assigned to such term in the recitals.

“Disposition” means, with respect to any Property, any conveyance, sale, lease, sublease, assignment, transfer or other disposition of such Property (including (i) by way of merger, consolidation or amalgamation, (ii) any sale and leaseback transaction and (iii) any Synthetic Lease).

“Disqualified Capital Stock” means, with respect to any Person, any Equity Interest which, by its terms (or by the terms of any security or instrument into which it is convertible or for which it is exchangeable or exercisable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than solely for Equity Interests in such Person or in any direct or indirect parent thereof that do not constitute Disqualified Capital Stock and cash in lieu of fractional shares of such Equity Interests), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or before the first anniversary of the Final Maturity Date, (b) is convertible into or exchangeable or exercisable (unless at the sole option of the issuer thereof) for (i) debt securities or other Indebtedness or (ii) any Equity Interests referred to in (a) above (other than solely for Equity Interests in such Person or in any direct or indirect parent thereof that do not constitute Disqualified Capital Stock and cash in lieu of fractional shares of such Equity Interests), in each case at any time on or before the date that is 91 days following the Final Maturity Date, or (c) contains any repurchase or payment obligation which may come into effect before the date that is 91 days following the Final Maturity Date; provided, however, that (i) an Equity Interest in any Person that would not constitute Disqualified Capital Stock but for terms thereof giving holders thereof the right to require such Person to redeem or purchase such Equity Interest upon the occurrence of an “asset sale,” “condemnation event,” a “change of control” or similar event shall not constitute Disqualified Capital Stock if any such requirement becomes operative only after all Secured Obligations under clauses (a) and (b) of the definition thereof (other than contingent reimbursement and indemnification obligations that are not then due and payable ) have been paid in full and all Commitments have terminated or expired and (ii) if an Equity Interest in any Person is issued pursuant to any plan for the benefit of employees of Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries or by any such plan to such employees, such Equity Interest shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by Borrower (or any direct or indirect parent company thereof) or any of its Subsidiaries in order to satisfy applicable statutory or regulatory obligations of such Person or as a result of such employee’s termination, death, or disability.

“Dividend” means, with respect to any Person, that such Person has declared or paid a dividend or returned any equity capital to the holders of its Equity Interests or authorized or made any other distribution, payment or delivery of Property (other than Qualified Capital Stock of such Person) or cash to the holders of its Equity Interests as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for consideration any of its Equity Interests outstanding (or any options or warrants issued by such Person with respect to its Equity Interests), or set aside or otherwise reserved, directly or indirectly, any funds for any of the foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for consideration any of the outstanding Equity Interests of such Person (or any options or warrants issued by such Person with respect to its Equity Interests).  Without limiting the foregoing, “Dividends” with respect to any Person shall also include all payments made or required to be made by such Person with respect to any stock appreciation rights, plans, equity incentive or achievement plans or any similar plans or setting aside of or otherwise reserving any funds for the foregoing purposes.

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

“Domestic Subsidiary” means any Subsidiary other than a Foreign Subsidiary.

“Early Opt-in Election” means the occurrence of:

(1)         a determination by the Administrative Agent (acting at the direction of the Required Lenders) that at least five currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) as a benchmark interest rate, in lieu of LIBOR, a new benchmark interest rate to replace LIBOR, and

(2)          the election by the Administrative Agent (acting at the direction of the Required Lenders) to declare that an Early Opt-in Election has occurred and the provision by the Administrative Agent of written notice of such election to Borrower.

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

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

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

“Effective Yield” means, as to any tranche of term loans (including, without limitation, the Loans), the effective yield on such tranche of term loans, as applicable, as reasonably determined by the Administrative Agent, taking into account the applicable interest rate margins, interest rate benchmark floors and all fees, including recurring, up-front or similar fees or original issue discount (amortized over four (4) years following the date of incurrence thereof; provided that (A) if the stated maturity date of a new tranche of term loans, as applicable, is less than four (4) years from the date of determination, then the “Effective Yield” for such tranche of term loans, as applicable, shall be determined using an assumed amortization period equal to the actual remaining life to maturity of such tranche) payable generally to the lenders making such tranche of term loans, as applicable, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared with the lenders thereunder, and (B) with respect to any Indebtedness that includes a “LIBOR floor” or “Base Rate floor,” (i) to the extent that the LIBOR Rate or Base Rate (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is less than such floor, the amount of such difference shall be deemed added to the interest rate margin for such Indebtedness for the purpose of calculating the Effective Yield and (ii) to the extent that the LIBOR Rate or Base Rate (without giving effect to any floors in such definitions), as applicable, on the date that the Effective Yield is being calculated is greater than such floor, then the floor shall be disregarded in calculating the Effective Yield.

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“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.04(b) (subject to such consents, if any, as may be required under Section 10.04(b)).

“Embargoed Person” means any Person that is the subject of sanctions or trade restrictions under (a) United States law, including any Person identified on (i) the “List of Specially Designated Nationals and Blocked Persons” (the “SDN List”) maintained by OFAC and/or on any other similar list (“Other List”) maintained by OFAC pursuant to any authorizing statute including the International Emergency Economic Powers Act, 50 U.S.C. Sections 1701 et seq., the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any executive order or regulation promulgated thereunder, or (ii) the Executive Order, any related enabling legislation or any other similar executive orders or (b) any person that is designated, listed or otherwise identified under Canadian Sanctions (the Legal Requirements referred to in clauses (a) and (b), collectively, “Sanctions Laws”).

“Employee Benefit Plan” means any of (a) any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was maintained, contributed to, or required to be maintained or contributed to by any Company or any of its ERISA Affiliates, (b) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (c) a “plan” as defined in Section 4975 of the Code or (d) 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) assets of any such “employee benefit plan” or “plan”, in each case, excluding any Canadian Pension Plan and any Foreign Plan.

“Environment” means any surface or subsurface physical medium or natural resource, including air, land, soil, surface waters, ground waters, stream and river sediments, biota and any indoor area, surface or physical medium.

“Environmental Claim” means any claim, notice, demand, Order, action, suit, proceeding, or other communication alleging or asserting liability or obligations under or relating to Environmental Law, including liability or obligation for investigation, assessment, remediation, removal, cleanup, Response, corrective action, monitoring, post-remedial or post-closure studies, investigations, operations and maintenance, injury, damage, destruction or loss to natural resources, personal injury, wrongful death, Property damage, indemnification, fines, penalties or other costs resulting from, related to or arising out of (i) the presence, Release or threatened Release of Hazardous Material in, on, into or from the Environment at any location or (ii) any violation of or non-compliance with Environmental Law, and shall include any claim, notice, demand, Order, action, suit or proceeding seeking damages (including the costs of remediation), contribution, indemnification, cost recovery, penalties, fines, indemnities, compensation or injunctive relief resulting from, related to or arising out of the presence, Release or threatened Release of Hazardous Material or alleged injury or threat of injury to health, safety or the Environment.

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“Environmental Law” means any and all applicable current and future Legal Requirements relating to health, safety or the Environment, the Release or threatened Release of Hazardous Material, natural resources or natural resource damages, or occupational safety or health.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Environmental Permit” means any permit, license, approval, consent, registration, notification, exemption or other authorization required by or from a Governmental Authority under any Environmental Law.

“Equity Interest” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents, including membership interests (however designated, whether voting or nonvoting), of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited), or if such Person is a limited liability company, membership interests and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of Property of, such partnership, whether outstanding on the date hereof or issued on or after the Closing Date, but excluding debt securities convertible or exchangeable into such equity.

“Equity Issuance” means, without duplication, (i) any issuance or sale by Borrower after the Closing Date of any Equity Interests in Borrower (including any Equity Interests issued upon exercise of any warrant or option or equity-based derivative) or any warrants or options or equity-based derivatives to purchase Equity Interests in Borrower, (ii) any Preferred Stock Issuance by Borrower after the Closing Date or (iii) any contribution to the capital of Borrower after the Closing Date.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

“ERISA Affiliate” means, with respect to any Person, any trade or business (whether or not incorporated) that, together with such Person, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code and regulations promulgated under those sections or within the meaning of meaning of Section 4001(b) of ERISA, or solely for purposes of Sections 302 and 303 of ERISA and Sections 412 and 430 of the Code, is treated as a single employer under Section 414 of the Code.  Any former ERISA Affiliate of a Person or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of such Person or such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of such Person or such Subsidiary and with respect to liabilities arising after such period for which such Person or such Subsidiary could reasonably be expected to be liable under the Code or ERISA, but in no event for more than six (6) years after such period if no such liability has been asserted against such Person or such Subsidiary; provided, however, that such Person or such Subsidiary shall continue to be an ERISA Affiliate of such Person or such Subsidiary after the expiration of the six-year period solely with respect to any liability asserted against such Person or such Subsidiary before the expiration of such six-year period.

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“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan; (ii) the failure to meet the minimum funding standard of Section 412 or 430 of the Code and Section 302 or 303 of ERISA with respect to any Pension Plan (whether or not waived) or the failure to make by its due date a required installment under Section 430(j) of the Code or Section 303(j) of ERISA with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (iv) the withdrawal by any Company or any of its ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability pursuant to Section 4063 or 4064 of ERISA; (v) the provision to any Company or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to institute proceedings to terminate any Pension Plan or Multiemployer Plan, or the occurrence of any event or condition which could reasonably be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (vi) the imposition of liability on any Company or any of its ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (vii) the withdrawal of any Company or any of its ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by any Company or any of its ERISA Affiliates of notice from any Multiemployer Plan that it is in insolvency pursuant to 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan, or the assets thereof, or against any Company or any of its ERISA Affiliates in connection with any Employee Benefit Plan; (ix) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; (x) the imposition of a Lien pursuant to Section 401(a)(29) or 430(k) of the Code or pursuant to ERISA or otherwise with respect to any Pension Plan or Multiemployer Plan; (xi) the determination that any Pension Plan is considered an at-risk plan or that any Multiemployer Plan is endangered or is in critical status within the meaning of Section 430, 431 or 432 of the Code or Section 303, 304 or 305 of ERISA; (xii) the incurrence by any Company or any of its ERISA Affiliates of any liability under Title IV of ERISA, other than for PBGC premiums not yet due; or (xiii) the occurrence of a non-exempt prohibited transaction (within the meaning of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to result in a material liability to any Company or any of its ERISA Affiliates.

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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.

“Eurodollar Borrowing” means a Borrowing comprised of Eurodollar Loans.

“Eurodollar Loan” means any Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate.

“Event of Default” has the meaning set forth in Article VIII.

“Excess Cash Flow” means, for any Excess Cash Flow Period, the sum, without duplication, of:

(a)          the sum, without duplication, of:

(i)          Consolidated Net Income for such Excess Cash Flow Period;

(ii)         an amount equal to all non-cash charges to the extent deducted in arriving at such Consolidated Net Income (provided that in each case, that if any non-cash charge represents an accrual or reserve for cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from Excess Cash Flow in such future period);

(iii)        the decrease, if any, in the Net Working Capital, long-term receivables and long-term prepaid assets and the increase, if any, in long-term deferred revenue and long-term warranty accruals from the beginning to the end of such Excess Cash Flow Period;

(iv)         the reversal, during such Excess Cash Flow Period, of any reserve established pursuant to clause (b)(i) or (xii) below; and

(v)          an amount equal to the aggregate net non-cash loss on dispositions by Borrower and its Subsidiaries during such period (other than dispositions in the ordinary course of business) to the extent deducted in arriving at such Consolidated Net Income; minus

(b)          the sum, without duplication, of:

(i)           the amount of any cash Consolidated Tax Expense paid or payable by Borrower and its Subsidiaries with respect to such Excess Cash Flow Period and for which, to the extent required under GAAP, reserves have been established;

(ii)          [reserved];

(iii)        the amount of Debt Service for such Excess Cash Flow Period;

(iv)         [reserved];

(v)          the sum of (i) Capital Expenditures made in cash or accrued during such Excess Cash Flow Period, to the extent funded from Internally Generated Funds, and (ii) cash consideration paid during such Excess Cash Flow Period to make Investment pursuant to Section 6.04(m) and acquisitions not prohibited by this Agreement to the extent financed from Internally Generated Funds;

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(vi)         the increase, if any, in the Net Working Capital and long-term receivables, long-term prepaid assets and decreases in long-term deferred revenue and long-term warranty accruals from the beginning to the end of such Excess Cash Flow Period; and

(vii)       an amount equal to the amount of all non-cash credits included in arriving at such Consolidated Net Income (including any amounts included in Consolidated Net Income pursuant to the last sentence of the definition of “Consolidated Net Income” to the extent such amounts are due but not received during such period) and cash charges included in clauses (a) through (j) of the definition of “Consolidated Net Income”;

(viii)      cash payments by Borrower and its Subsidiaries during such Excess Cash Flow Period in respect of purchase price holdbacks, earn out obligations, or long-term liabilities of Borrower and its Subsidiaries other than Indebtedness to the extent such payments are not expensed during such Excess Cash Flow Period or are not deducted in calculating Consolidated Net Income, to the extent financed with Internally Generated Funds;

(ix)         the amount of Dividends paid in cash by Borrower during such period not prohibited by this Agreement, to the extent that such Dividends are financed with Internally Generated Funds;

(x)          the aggregate amount of expenditures actually made by Borrower and its Subsidiaries in cash during such period (including expenditures for the payment of financing fees and cash restructuring charges) to the extent that such expenditures are not expensed during such period or are not deducted in calculating Consolidated Net Income, to the extent that such expenditure was financed with Internally Generated Funds;

(xi)         without duplication of amounts deducted from Excess Cash Flow in prior Excess Cash Flow Periods, the aggregate consideration required to be paid in cash or Cash Equivalents by Borrower or any of its Subsidiaries pursuant to binding contract commitments, letters of intent or purchase orders (the “Contract Consideration”), in each case, entered into prior to or during such Excess Cash Flow Period, relating to Investments permitted pursuant to Section 6.04(m) or (n) or Capital Expenditures (including Capitalized Software Expenditures or other purchases of intellectual property) to be consummated or made during a subsequent Excess Cash Flow Period; provided that to the extent the aggregate amount of Internally Generated Funds actually utilized to finance such Investments or Capital Expenditures during such Excess Cash Flow Period is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such Excess Cash Flow Period; and

(xii)          the amount of taxes (including penalties and interest) paid in cash and/or tax reserves set aside or payable (without duplication) in such Excess Cash Flow Period to the extent they exceed the amount of tax expense deducted in determining Consolidated Net Income for such Excess Cash Flow Period.

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“Excess Cash Flow Period” means (i) the period taken as one accounting period from January 1, 2020, and ending on December 31, 2020, and (ii) each fiscal year of Borrower thereafter.

“Exchange Act” means the Securities Exchange Act of 1934.

“Excluded Accounts” has the meaning set forth in the Security Agreement.

“Excluded Property” has the meaning set forth in the Security Agreement.

“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of Borrower hereunder, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed by a jurisdiction as a result of such recipient being organized under the laws of, or having its principal office located in, or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such tax, or (ii) that are Other Connection Taxes, (b) in the case of a Foreign Lender (other than an Eligible Assignee pursuant to a request by Borrower under Section 2.16), any United States federal withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts with respect to such withholding tax pursuant to Section 2.15, (c) any withholding tax that is attributable to such Foreign Lender’s failure or inability to comply with Section 2.15(f), and (d) any United States federal withholding tax imposed as a result of FATCA.

“Executive Order” has the meaning set forth in Section 3.21.

“Existing Lien” has the meaning set forth in Section 6.02(c).

“Existing Loan Class” has the meaning set forth in Section 2.20(a).

“Exit Transactions” means, collectively, the entry of the Confirmation Order, the transactions contemplated by the Approved Plan, the entry into the First Out Term Loan Facility and the deemed funding of the loans thereunder, the deemed funding of the Loans on the Closing Date, the consummation of the other transactions contemplated by this Agreement and the Approved Plan, the consummation of any other transactions in connection with the foregoing, and the payment of the fees and expenses incurred in connection with any of the foregoing (including the Transaction Expenses).

“Extended Loan Maturity Date” means with respect to any tranche of Extended Loans, the final maturity date applicable thereto as specified in the applicable Extension Notice accepted by the respective Extending Lender or Extending Lenders.

“Extended Loans” has the meaning set forth in Section 2.18(a).

“Extending Lender” has the meaning set forth in Section 2.18(a).

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“Extension” has the meaning set forth in Section 2.18(a).

“Extension Amendment” has the meaning set forth in Section 2.18(a).

“Extension Date” has the meaning set forth in Section 2.18(b).

“Extension Notice” has the meaning set forth in Section 2.18(a).

“Extension Offer” has the meaning set forth in Section 2.18(a).

“Extension Series” means all Extended Term Loans that are established pursuant to the same Extension Amendments (or any subsequent Extension Amendment to the extent such Extension Amendment expressly provides that the Extended Term Loans provided for therein are intended to be part of any previously established Extension Series) and that provide for the same interest margins, extension fees, if any, and amortization schedule.

“Facility” shall have the meaning assigned to such term in the recitals.

“Fair Market Value” means, with respect to any asset (including any Equity Interests of any Person), the price at which a willing buyer, not an Affiliate of the seller, and a willing seller who does not have to sell, would agree to purchase and sell such asset, as determined in good faith by the Board of Directors or pursuant to a specific delegation of authority by such Board of Directors.

“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) and any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code (or any successor provisions described above).

“FCC” means the U.S. Federal Communications Commission, or any successor agency of the federal government administering the Communications Act, including its staff acting under delegated authority.

“Federal Funds Effective Rate” means, for any day, the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System of the United States, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary to the next 1/100th of 1%) of the quotations for the day for such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it.

“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.

“Fee Letter” means the confidential Agent Fee Letter, dated May 8, 2020, among Borrower and the Agents.

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“Fees” means the Administrative Agent Fees and the other fees referred to in Section 2.05.

“Final Maturity Date” means the later of (i) the Loan Maturity Date (ii) each Extended Loan Maturity Date, and (iii) the maturity date for each Other Loan as specified in its respective Refinancing Amendment.

“Finance Lease” means any lease of property classified as a “finance lease” under GAAP.

“Finance Lease Obligations” of any Person, means the amount of obligations of such Person under Finance Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with GAAP.

“Financial Officer” of any Person means the chief financial officer, principal accounting officer, treasurer, assistant treasurer, controller or assistant controller of such Person.

“First Out Obligations” means “Obligations” as defined in the First Out Term Loan Credit Agreement.

“First Out Term Loan Administrative Agent” means Wilmington Trust, National Association, as administrative agent under the First Out Term Loan Documents.

“First Out Term Loan Credit Agreement” shall mean the Senior Secured Term Loan Credit Agreement, dated as of the date hereof, among Borrower, as borrower, the Guarantors, as guarantors, the lenders party thereto, and Wilmington Trust, National Association, as administrative agent and collateral agent, as such document may be amended, restated, supplemented, amended and restated, extended, renewed, refunded, replaced, refinanced, supplemented or otherwise modified from time to time in accordance with the terms hereof.

“First Out Term Loan Lenders” means “Lenders” as defined in the First Out Term Loan Credit Agreement.

“First Out Term Loans” means “Loans” as defined in the First Out Term Loan Credit Agreement.

“First Out Term Loan Documents” shall mean (i) the First Out Term Loan Credit Agreement and the other “Loan Documents” under and as defined in therein, as each such document may be amended, renewed, restated, supplemented or otherwise modified from time to time or (ii) the “Priority Loan Documents” as defined in (and in effect) at such time under the Intercreditor and Collateral Agency Agreement.

“First Out Term Loan Facility” shall have the meaning assigned to such term in the recitals.

“Flood Hazard Property” means a property in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards.

“Foreign Entity” means any entity not organized under the laws of the United States, any state thereof or the District of Columbia.

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

“Foreign Plan” means any employee benefit, deferred compensation, registered pension, or other retirement or superannuation plan, fund, program, policy, commitment, arrangement or agreement whether oral or written, funded or unfunded, sponsored, established, maintained or contributed to, or required to be contributed to, or with respect to which any liability is borne by any Company with respect to employees, officers or directors employed, or otherwise engaged, outside the United States and Canada.

“Foreign Subsidiary” means a Subsidiary that is organized under the laws of a jurisdiction other than the United States or any state thereof or the District of Columbia.

“Funded Debt” means all Indebtedness of Borrower and its Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date that is renewable or extendable, at the option of such Person, to a date more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans and the Indebtedness under the First Out Term Loan Credit Agreement.

“Funding Default” has the meaning set forth in Section 2.16(c).

“GAAP” means generally accepted accounting principles in the United States, or successors thereto (e.g., subject to Section 1.04, IFRS), applied on a consistent basis.  For purposes of this Agreement, a generally accepted accounting principle shall be deemed to constitute GAAP (and a change in GAAP, if applicable) on the earliest date on which it is permitted to be adopted by any Company under the Legal Requirements applicable thereto.

“Governmental Authority” means any federal, state, provincial, territorial, local or foreign (whether civil, administrative, criminal, military or otherwise) court, central bank or governmental agency, tribunal, authority, instrumentality self-regulatory organization, or regulatory body, including the FCC and any PUC, or any subdivision thereof or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers of or pertaining any government or any court, in each case whether associated with a state of the United States, the United States, a province or territory of Canada, Canada or another Foreign Entity or government (including any supra-national bodies such as the European Union or the European Central Bank).

“Governmental Real Property Disclosure Requirements” means any Legal Requirement of any Governmental Authority requiring notification of the buyer, lessee, mortgagee, assignee or other transferee of any Real Property, facility, establishment or business, or any notification, registration or filing to or with any Governmental Authority, in connection with the Disposition (including any transfer of control) of any Real Property, facility, establishment or business, as may be required under any applicable Environmental Law or of any actual or threatened presence or Release in, on, into or from the Environment, or the use, disposal or handling of Hazardous Material on, at, under, from or near the Real Property, facility, establishment or business to be sold, acquired, leased, mortgaged, assigned or transferred.

“Granting Lender” has the meaning set forth in Section 10.04(h).

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“Guaranteed Obligations” has the meaning set forth in Section 7.01.

“Guarantees” means the guarantees issued pursuant to Article VII by the Guarantors.

“Guarantor” means each Subsidiary listed on Schedule 1.01(b), and each other Subsidiary of any Loan Party that is or becomes a party to this Agreement and the Security Documents pursuant to Section 5.11.

“Hazardous Materials” means hazardous substances, hazardous wastes, hazardous materials, polychlorinated biphenyls (“PCBs”) or any substance or compound containing PCBs, asbestos or any asbestos-containing materials in any form or condition, lead-based paint, urea formaldehyde, pesticides, radon or any other radioactive materials including any source, special nuclear or by -product material, petroleum, petroleum products, petroleum-derived substances, crude oil or any fraction thereof, underground or aboveground storage tanks, whether empty or containing any substance, any mold, microbial or fungal contamination that could pose a risk to human health or the Environment or would negatively impact the condition of the Real Property or any other pollutants (including greenhouse gases), contaminants, chemicals, wastes, materials, compounds, constituents or substances, defined under, subject to regulation under, or which can give rise to liability or obligations under, any Environmental Laws.

“Hedging Agreement” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, currency swap transactions, cross-currency rate swap transactions, currency options, cap transactions, floor transactions, collar transactions, spot contracts, futures contracts or other liabilities for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract or any other similar transactions or any combination of any of the foregoing (including any options or warrants to enter into any of the foregoing), whether or not any such transaction is governed by, or otherwise subject to, any master agreement or any netting agreement and (b) any and all transactions or arrangements of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement (or similar documentation) published from time to time by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such agreement or documentation, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“Hedging Obligations” means obligations under or with respect to Hedging Agreements.

“Hedging Termination Value” means, in respect of any one or more Hedging Agreements, after taking into account the effect of any netting agreements relating to such Hedging Agreements (to the extent, and only to the extent, such netting agreements are legally enforceable in Insolvency Proceedings against the applicable counterparty obligor thereunder), (i) for any date on or after the date such Hedging Agreements have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (ii) for any date before the date referenced in preceding clause (i), the amount(s) determined as the mark-to-market value(s) for such Hedging Agreements, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Agreements (which may include a Lender or any Affiliate of a Lender).

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“Houston Disposition” means the sale of certain assets and liabilities relating to the data center operated by Borrower at 1301 Fannin Street, Houston, Texas 77002, pursuant to that certain Asset Purchase Agreement, reasonably acceptable to the Required Lender, by and among Borrower, 1301 Fannin Tenant, LLC, a Delaware limited liability company, as buyer and, solely for purposes of Section 1.7(g) of the Asset Purchase Agreement, Netrality Properties, LP.

“Hypothecary Representative” has the meaning assigned to such term in Section 9.02.

“IFRS” means International Financial Reporting Standards issued by the International Accounting Standards Board (or the Financial Accounting Standards Board of the American Institute of Certified Public Accountants or the SEC, as the case may be), as in effect from time to time.

“Immaterial Subsidiary” means, as of any date of determination, any Wholly Owned Subsidiary of Borrower that is a Foreign Subsidiary and (a) whose total assets (on a consolidated basis including its Subsidiaries as determined in accordance with GAAP) as of the last day of the most recently ended Test Period did not exceed 2.50% of the consolidated total assets of Borrower and its Subsidiaries (as determined in accordance with GAAP) and (b) whose Consolidated EBITDA attributable to such Subsidiary (on a consolidated basis including its Subsidiaries as determined in accordance with GAAP) for such Test Period did not exceed 2.50% of the Consolidated EBITDA of Borrower and its Subsidiaries (as determined in accordance with GAAP).

“Impacted Interest Period” has the meaning set forth in the definition of “LIBOR Rate.”

“Increasing Lenders” has the meaning set forth in Section 2.17(b).

 “Incremental Cap” means $25,000,000 minus the original principal amount of any “Incremental Loans” made under and as defined in the First Out Term Loan Credit Agreement as in effect on the date hereof.

“Incremental Loan” means term loans made pursuant to Section 2.17.

“Incremental Loan Amendment” has the meaning set forth in Section 2.17(d).

“Incurrence Leverage Level” means 0.25% lower than the then-applicable Projected Total Net Leverage Ratio.

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“Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or advances; (b) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or similar instruments; (c) all obligations of such Person under conditional sale or other title retention agreements relating to Property purchased by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property); (d) all obligations of such Person issued or assumed as part of the deferred purchase price of Property or services (excluding trade accounts payable and accrued obligations incurred in the ordinary course of business and any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP); (e) all Indebtedness secured by any Lien on Property owned or acquired by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not the obligations secured thereby have been assumed, but limited to the lower of (i) the Fair Market Value of such Property and (ii) the amount of the Indebtedness secured; (f) all Capital Lease Obligations, Purchase Money Obligations and Synthetic Lease Obligations of such Person; (g) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Equity Interests of such Person, valued, in the case of a redeemable preferred Equity Interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (h) all Hedging Obligations, valued at the Hedging Termination Value thereof; (i) all obligations of such Person for the reimbursement of any obligor in respect of letters of credit, letters of guaranty, bankers’ acceptances and similar credit transactions; (j) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of Disqualified Capital Stock and (k) all Contingent Obligations of such Person in respect of Indebtedness or obligations of others of the kinds referred to in clauses (a) through (j) above.  The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in, or other relationship with, such entity, except (other than in the case of general partner liability) to the extent that terms of such Indebtedness expressly provide that such Person is not liable therefor.

“Indemnified Taxes” means Taxes other than Excluded Taxes.

“Indemnitee” has the meaning set forth in Section 10.03(b).

“Indemnitee Related Persons” has the meaning set forth in Section 10.03(b).

“Information” has the meaning set forth in Section 10.12.

“Insolvency Laws” means the Bankruptcy Code and all other insolvency, bankruptcy, receivership, liquidation, conservatorship, assignment for the benefit of creditors, moratorium, rearrangement, reorganization, or similar federal or state Legal Requirements of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally, including the Companies’ Creditors Arrangement Act (Canada), the Bankruptcy and Insolvency Act (Canada), the Winding-up and Restructuring Act (Canada) and the Civil Code of Quebec.

“Insolvency Proceeding” means (i) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (ii) any general assignment for the benefit of creditors, formal or informal moratorium, composition, marshaling of assets for creditors or other, similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each case, undertaken under United States federal or state or non-United States federal or state Legal Requirements, including any Insolvency Laws.

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“Insurance Policies” means the insurance policies and coverages required to be maintained by each Loan Party that is an owner or lessee of Material Property with respect to the applicable Material Property pursuant to Section 5.04 and all renewals and extensions thereof.

“Insurance Requirements” means, collectively, all provisions of the Insurance Policies, all requirements of the issuer of any of the Insurance Policies and all Orders, rules, regulations and any other requirements of the National Board of Fire Underwriters (or any other body exercising similar functions) binding upon any Loan Party that is an owner or lessee of Material Property and applicable to the Material Property or any use or condition thereof.

“Intellectual Property” has the meaning set forth in Section 3.06(a).

“Intercompany Note” means the intercompany demand promissory note substantially in the form of Exhibit D delivered on the Closing Date.

“Intercreditor and Collateral Agency Agreement” means the Intercreditor and Collateral Agency Agreement, dated as of the date hereof, by and among the Administrative Agent, the First Out Term Loan Administrative Agent, the Loan Parties and each other Person party thereto from time to time.

“Interest Election Request” means a request by Borrower to convert or continue a Borrowing in accordance with Section 2.08(b).

“Interest Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December to occur during any period in which such Loan is outstanding,  (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part, (c) with respect to any Loan, the Loan Maturity Date and, after such maturity, on each date on which demand for payment is made, (d) with respect to any Extended Loan, the applicable Extended Loan Maturity Date and, after such maturity, on each date on which demand for payment is made, and (e) with respect to any PIK Interest, the Interest Payment Date set forth in the foregoing clause (a), (b), (c) or (d), as applicable, with respect to the Loan to which such PIK Interest relates.

“Interest Period” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one or three months thereafter, as Borrower may elect; provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (b) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

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 “Internally Generated Funds” means funds not constituting the proceeds of any Indebtedness, Debt Issuance, Equity Issuance, Asset Sale or Casualty Event (in each case, without regard to the exclusions from the definitions thereof, other than in the case of an Asset Sale only, any Disposition of assets permitted by Sections 6.04(b), 6.06(g) or 6.06(h)).

“Interpolated Rate” has the meaning set forth in the definition of “LIBOR Rate.”

“Investments” has the meaning set forth in Section 6.04.

“iWeb Disposition” means the sale of iWeb Technology Inc. and its subsidiaries (or a division thereof) to a third party, whether through a sale of the capital stock of iWeb Technology Inc., a sale of assets, a merger or any similar transaction, pursuant to a purchase agreement reasonably acceptable to the Required Lenders.

“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit 3 to the Security Agreement.

“Landlord Access Agreement” has the meaning set forth in the Security Agreement.

“Leases” means any and all leases, subleases, tenancies, options, concession agreements, rental agreements, occupancy agreements, franchise agreements, access agreements and any other agreements (including all amendments, extensions, replacements, renewals, modifications and/or guarantees thereof), whether or not of record and whether now in existence or hereafter entered into, affecting the use or occupancy of all or any portion of any Real Property.

“Legal Requirements” means, as to any Person, the Organizational Documents of such Person, and any treaty, law (including the common law), statute, ordinance, code, rule, regulation, guidelines, license, permit requirement, Order or determination of an arbitrator or a court or other Governmental Authority, and the interpretation or administration thereof, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject, in each case whether or not having the force of law.  For purposes of Section 2.15, the term “applicable Legal Requirements” shall include FATCA.

“Lender Party” means any of the Lenders, Administrative Agent and Collateral Agent; and “Lender Parties” means all such Persons, collectively.

“Lenders” means (a) the financial institutions and other Persons party hereto as “Lenders” on the date hereof, and (b) each financial institution or other Person that becomes a party hereto pursuant to an Assignment and Assumption (including pursuant to Section 2.17), other than, in each case, any such financial institution or Person that has ceased to be a party hereto pursuant to an Assignment and Assumption.

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“LIBOR Rate” means, with respect to any Eurodollar Borrowing for any Interest Period therefor, the rate per annum equal to the arithmetic mean (rounded to the nearest 1/100th of 1%) of the offered rates for deposits in Dollars with a term comparable to such Interest Period that appears on Reuters Screen LIBOR01 Page (or such other page as may replace such page on such service for the purpose of displaying the rates at which Dollar deposits are offered by leading banks in the London interbank deposit market as designated by the Administrative Agent from time to time) (the “Screen Rate”) at approximately 11:00 a.m., London, England time, on the second full Business Day preceding the first day of such Interest Period; provided, however, that (i) if the Screen Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement, (ii) if no comparable term for an Interest Period (the “Impacted Interest Period”) is available, the LIBOR Rate shall be determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between:  (a) the applicable Screen Rate (for the longest period for which the applicable Screen Rate is available) that is shorter than the Impacted Interest Period and (b) the applicable Screen Rate for the shortest period (for which such Screen Rate is available) that exceeds the Impacted Interest Period, in each case, for such Interest Period (such rate, the “Interpolated Rate”) and (iii) if Reuters Screen LIBOR01 Page shall at any time no longer exist, “LIBOR Rate” means, with respect to each day during each Interest Period pertaining to Eurodollar Borrowings comprising part of the same Borrowing, the rate per annum equal to the rate at which the Administrative Agent is offered deposits in Dollars at approximately 11:00 a.m., London, England time, two (2) Business Days before the first day of such Interest Period in the London interbank market for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to its portion of the amount of such Eurodollar Borrowing to be outstanding during such Interest Period.  Notwithstanding the rate determined pursuant to the foregoing, in no event shall the LIBOR Rate be less than 1.00%.  “Reuters Screen LIBOR01 Page” means the display designated on the Reuters 3000 Xtra Page (or such other page as may replace such page on such service for the purpose of displaying the rates at which Dollar deposits are offered by leading banks in the London interbank deposit market).

“Lien” means, with respect to any Property, (a) any mortgage, deed of trust, lien (statutory or other), judgment liens, pledge, encumbrance, claim, charge, assignment, hypothecation, hypothec, deposit arrangement, security interest or encumbrance of any kind or any arrangement to provide priority or preference, including any easement, servitude, right-of-way or other encumbrance on title to Real Property, in each of the foregoing cases whether voluntary or imposed or arising by operation of law, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement and any lease in the nature thereof and any option, call, trust, contractual, statutory, UCC or PPSA (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such Property, and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

“Limited Condition Transaction” means any acquisition or investment permitted by this Agreement that Borrower or any other Loan Party is contractually committed to consummate, in each case whose consummation is not conditioned on the availability of, or on obtaining, third party financing and which has been designated as a Limited Condition Transaction by Borrower in writing to the Administrative Agent.

“Loan Commitment” means, with respect to each Lender, the commitment, if any, of such Lender to make (or be deemed to have made) the Loans as set forth on Annex I.

“Loan Documents” means this Agreement, the Notes (if any), the Security Documents, the Post-Closing Agreement, the Intercompany Note, each Joinder Agreement, any other agreements, documents and instruments providing for or evidencing any other Obligations, and any other document or instrument executed or delivered at any time in connection with any Obligations, including any intercreditor or joinder agreement among holders of Obligations, to the extent such are effective at the relevant time, as each may be amended, restated, supplemented, modified, renewed or extended from time to time, and, except for purposes of Section 10.02(b), the Fee Letter.

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“Loan Maturity Date” means the earlier of (a) May 8, 2025 and (b) the date on which the Obligations become due and payable pursuant to this Agreement, whether by acceleration or otherwise

“Loan Parties” means Borrower and the Guarantors.

“Loans” means the Loans made or deemed made hereunder, and shall include the increase in the principal amount thereof as a result of PIK Interest that is paid in kind hereunder.

 “Margin Stock” has the meaning set forth in Regulation U.

“Master Agreement” has the meaning set forth in the definition of “Hedging Agreement.”

“Material Adverse Effect” means (a) a material adverse effect on, or material adverse change in the business, property, operations, financial condition or results of operations of the Loan Parties, taken as a whole,  (excluding, in the case of (a) and (d)(i) below, (i) any matters publicly disclosed in writing or disclosed to the Administrative Agent and the Lenders in writing prior to the filing of the Chapter 11 Cases, (ii) any matters disclosed in the schedules hereto, (iii) any matters disclosed in any first day pleadings or declarations, (iv) the filing of the Chapter 11 Cases, the events and conditions related and/or leading up thereto, the announcement thereof and the effects thereof and any action required to be taken under the Loan Documents, (v) the Exit Transactions and (vi) any defaults under agreements as a result of the Chapter 11 Cases that are stayed by the Bankruptcy Court), (b) material impairment of the ability of the Loan Parties, taken as a whole, to perform any of their payment obligations under any Loan Document, (c) a material impairment of the rights or remedies available to the Lenders, the Collateral Agent or the Administrative Agent under any Loan Document, taken as a whole, or (d) a material adverse effect on (i) the Collateral, taken as a whole, or (ii) the Liens in favor of the Collateral Agent (for its benefit and for the benefit of the other Secured Parties) on the Collateral, taken as a whole, or the validity, enforceability, perfection or priority of such Liens, taken as a whole.

“Material Adverse Lease Event” means any event of default or default under any Lease on a Material Property or any event that with the passage of time would become an event of default or default under any Lease affecting any Material Property.

“Material Agreement” means any agreement, contract or instrument to which any Company is a party or by which any Company or any of its properties is bound (i) pursuant to which any Company is required to make payments or other consideration, or will receive payments or other consideration, in excess of $10,000,000 in any twelve month period, (ii) the Data Center Leases, or (iii) the termination or suspension of which, or the failure of any party thereto to perform its obligations thereunder, could reasonably be expected to have a Material Adverse Effect.

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“Material Property” means (a) each Real Property identified on Schedule 1.01(a) attached hereto and (b) each Real Property, if any, which shall be subject to a mortgage delivered after the Closing Date pursuant to Section 5.11.

“Maximum Rate” has the meaning set forth in Section 10.13.

“Minimum Extension Condition” has the meaning set forth in Section 2.18(e).

“Mortgage” means an agreement, including a mortgage, deed of trust, deed of hypothec, or any other document, creating and evidencing a Lien on a Material Property to secure the Secured Obligations, which shall be in form and substance reasonably satisfactory to the Collateral Agent, in each case, with such schedules and including such provisions as shall be necessary to conform such document to applicable local or foreign law or as shall be customary under applicable local or foreign Legal Requirements.

“Multiemployer Plan” means a multiemployer plan within the meaning of Section 4001(a)(3) or Section 3(37) of ERISA, (a) to which any Company or any of its ERISA Affiliates is then making or accruing an obligation to make contributions, (b) to which any Company or any of its ERISA Affiliates has within the preceding six plan years made or been obligated to make contributions, including for these purposes, any Person which ceased to be an ERISA Affiliate during such six-year period, or (c) with respect to which any Company or any of its ERISA Affiliates could incur liability, whether absolute or contingent.

“Net Cash Proceeds” means:

(a)           with respect to any Asset Sale (other than any issuance or sale of Equity Interests), an amount equal to the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable, or by the sale, transfer or other Disposition of any non-cash consideration received in connection therewith or otherwise, but only as and when received) received by any Company (including cash proceeds subsequently received (as and when received by any Company) in respect of non-cash consideration initially received) net of (i) selling expenses (including brokers’ fees or commissions, legal, investment banking, accounting and other professional and transactional fees, transfer and similar taxes and Borrower’s good faith estimate of income taxes paid or payable in connection with such sale (after taking into account any available tax credits or deductions and any tax sharing arrangements)), (ii) amounts provided as a reserve, in accordance with GAAP, against (x) any liabilities under any indemnification obligations associated with such Asset Sale or (y) any other liabilities retained by any Company associated with the properties sold in such Asset Sale (provided that, to the extent and at the time any such amounts are released from such reserve (other than as a result of payments made thereunder), such amounts shall constitute Net Cash Proceeds), and (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money that is secured by a Lien on the properties sold in such Asset Sale (so long as such Lien was permitted to encumber such properties under the Loan Documents at the time of such sale) and which is repaid with such proceeds (other than any such Indebtedness assumed by the purchaser of such properties);

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(b)         with respect to any (i) Debt Issuance, (ii) Equity Issuance or (iii) other issuance or sale of Equity Interests by Borrower or any of its Subsidiaries, an amount equal to the cash proceeds thereof received by any Company, net of fees, commissions, costs and other expenses incurred in connection therewith; and

(c)         with respect to any Casualty Event, an amount equal to the cash insurance proceeds (other than business interruption insurance proceeds), condemnation awards and other compensation received by any Company in respect thereof, net of all costs and expenses incurred in connection with the collection of such proceeds, awards or other compensation in respect of such Casualty Event.

“Net Working Capital” means, at any time, Consolidated Current Assets at such time minus Consolidated Current Liabilities at such time.

“New Lender” has the meaning set forth in Section 2.17.

“Non-Public Information” means (i) material non-public information (within the meaning of United States federal, state or other applicable securities laws) with respect to Borrower or its Subsidiaries or their securities and (ii) information of a type that would be material non-public information (within the meaning of United States federal, state or other applicable securities laws) relating to Borrower if Borrower were a public reporting company with respect to Borrower or its Subsidiaries or their respective securities.

“Notes” means any notes evidencing the Loans, in each case issued pursuant to Section 2.04(e), if any, substantially in the form of Exhibit I.

“NYFRB” means the Federal Reserve Bank of New York.

“Obligations” means (a) all obligations of Borrower and the other Loan Parties from time to time arising under or in respect of the due and punctual payment of (i) the principal (including, for the avoidance of doubt, any increases thereof as a result of PIK Interest) of and premium, if any, and interest (including interest accruing during the pendency of any Insolvency Proceeding, regardless of whether allowed or allowable in such Insolvency Proceeding) on the Loans, the Incremental Loans and the Other Loans when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise and (ii) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any Insolvency Proceeding, regardless of whether allowed or allowable in such Insolvency Proceeding), of Borrower and the other Loan Parties under this Agreement and the other Loan Documents, and (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of Borrower and the other Loan Parties under or pursuant to this Agreement and the other Loan Documents, in each case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising.

“OFAC” has the meaning set forth in Section 3.21.

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“Offer Loans” has the meaning set forth in Section 10.04(j)(i).

“Officers’ Certificate” means a certificate executed by (i) the chairman of the Board of Directors (if an officer), the chief executive officer or the president and (ii) one of the Financial Officers, each in his or her official (and not individual) capacity.

“Order” means any judgment, decree, verdict, order, consent order, consent decree, writ, declaration or injunction.

“Organizational Documents” means, with respect to any Person, (i) in the case of any corporation, the certificate of incorporation, articles of incorporation or deed of incorporation and bylaws (or similar constituent documents) of such Person, (ii) in the case of any limited liability company, the certificate or articles of formation or organization and operating agreement or memorandum and articles of association (or similar constituent documents) of such Person, (iii) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar constituent documents) of such Person (and, where applicable, the equityholders or shareholders registry of such Person), (iv) in the case of any general partnership, the partnership agreement (or similar constituent document) of such Person and (v) in any other case, the functional equivalent of the foregoing.

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

“Other Loan” means one or more Classes of Loans that result from a Refinancing Amendment.

“Other Loan Commitments” means one or more Class of Loan commitments hereunder that result from a Refinancing Amendment.

“Other List” has the meaning set forth in the definition of “Embargoed Person.”

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.16).

“Participant” has the meaning set forth in Section 10.04(e).

“Participant Register” has the meaning set forth in Section 10.04(e).

“Patriot Act” has the meaning set forth in Section 3.21(a).

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“Payment in Full of the First Out Obligations” means with respect to the First Out Obligations, the full and complete cash payment thereof, including any interest, fees and other charges.

“PBGC” means the Pension Benefit Guarantee Corporation referred to and defined in ERISA.

“Pension Plan” means any Employee Benefit Plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA (a) which is maintained or contributed to by any Company or any of its ERISA Affiliates, (b) to which any Company or any of its ERISA Affiliates has within the preceding six plan years made or been obligated to make contributions, including for these purposes, any Person which ceased to be an ERISA Affiliate during such six-year period, or (c) or with respect to which any Company or any of its ERISA Affiliates could incur liability, whether absolute or contingent (including under Section 4069 of ERISA).

“Perfection Certificate” means a perfection certificate in the form of Exhibit E-1 or any other form approved by the Collateral Agent, as the same shall be supplemented from time to time by a Perfection Certificate Supplement or otherwise.

“Perfection Certificate Supplement” means a perfection certificate supplement in the form of Exhibit E-2 or any other form approved by the Collateral Agent.

“Permitted Liens” has the meaning set forth in Section 6.02.

“Person” means any natural person, corporation, business trust, joint venture, trust, association, company (whether limited in liability or otherwise), partnership (whether limited in liability or otherwise) or Governmental Authority, or any other entity, in any case, whether acting in a personal, fiduciary or other capacity.

“Petition Date” has the meaning set forth in the recitals to this Agreement.

“PIK Interest” means, on any date, (i) any Designated Cash Pay PIK Interest and (ii) any interest at the rate set forth in Section 2.06(b), in each case, that accrues and is added to the outstanding principal balance of the Loans on each Interest Payment Date in accordance with Section 2.06, which shall thereafter be deemed principal bearing interest in accordance with Section 2.06(a) and Section 2.06(b).

“Platform” means IntraLinks, SyndTrak or a substantially similar electronic transmission system.

“Pledgor” means each Company listed on Schedule 1.01(c), and each other Subsidiary of any Loan Party that is or becomes a party to this Agreement (in its capacity as a Guarantor) and the Security Documents pursuant to Section 5.11.

“Post-Closing Agreement” means that certain Post-Closing Agreement dated as of the date hereof among the Collateral Agent, the Administrative Agent and Borrower.

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“PPSA” means the Personal Property Security Act as in effect from time to time (except as otherwise specified) in any applicable province or jurisdiction, or, in the case of the Province of Quebec, the Civil Code of Quebec.

“Preferred Stock” means, with respect to any Person, any and all preferred or preference Equity Interests (however designated) of such Person whether now outstanding or issued after the Closing Date.

“Preferred Stock Issuance” means the issuance or sale by any Company of any Preferred Stock after the Closing Date.

“Prepackaged Plan” shall have the meaning assigned to such term in the recitals.

“Pre-Petition Agent” means Jefferies Finance LLC, in its capacity as administrative agent and collateral agent under the Pre-Petition Credit Agreement.

“Pre-Petition Credit Agreement” means that certain Credit Agreement dated April 6, 2017, among Borrower, the Guarantors, the Pre-Petition Agent, the Pre-Petition Lenders and the other parties thereto (as amended by that certain First Amendment to Credit Agreement dated as of June 28, 2017, that certain Second Amendment to Credit Agreement dated as of February 6, 2018, that certain Incremental and Third Amendment to Credit Agreement dated as of February 28, 2018, that certain Fourth Amendment to Credit Agreement dated as of April 9, 2018, that certain Incremental and Fifth Amendment to Credit Agreement dated as of August 28, 2018, that certain Sixth Amendment to Credit Agreement dated as of May 8, 2019, that certain Seventh Amendment to Credit Agreement dated as of October 29, 2019, and that certain Incremental and Eighth Amendment to Credit Agreement dated as of March 13, 2020).

“Pre-Petition Lenders” means the Lenders under and as defined in the Pre-Petition Credit Agreement.

“Projected Total Net Leverage Ratio” means the Total Net Leverage Ratio covenant level for each Test Period set forth in Section 6.10, which such covenant levels (a) shall be determined by Borrower within 45 days after the date Borrower delivers the financial statements required under Section 5.01(b) for the fiscal quarter ending June 30, 2020, (b) shall be approved by the Required Lenders and (c) shall be set utilizing a 30% cushion to projected Consolidated EBITDA for each Test Period indicated in Section 6.10.

“Property” means any right, title or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible and including Equity Interests of any Person and whether now in existence or owned or hereafter entered into or acquired, including all Real Property, cash, securities, accounts, revenues and contract rights.

“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.

“Public Lenders” means Lenders that do not wish to receive Non-Public Information with respect to Borrower or its Subsidiaries.

“PUC” means any state public service or public utility commission or other state Governmental Authority that exercises jurisdiction over the rates or services or the acquisition, construction or operation of any telecommunications system of any person who owns, constructs or operates any telecommunications system, in each case by reason of the nature or type of the business subject to regulation and not pursuant to laws and regulations of general applicability to persons conducting business in such state.

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“Purchase Money Obligation” means, for any Person, the obligations of such Person in respect of Indebtedness (including Capital Lease Obligations) incurred for the purpose of financing all or any part of the purchase price of any fixed or capital assets (including Equity Interests of any Person owning fixed or capital assets) or the cost of installation, construction, repair, replacement or improvement of any fixed or capital assets; provided, however, that (i) such Indebtedness is incurred within 120 days after such acquisition, installation, construction, repair, replacement or improvement of such fixed or capital assets (including Equity Interests of any Person owning the applicable fixed or capital assets) by such Person and (ii) the amount of such Indebtedness does not exceed the lesser of 100% of the Fair Market Value of such fixed or capital asset or the cost of the acquisition, installation, construction or improvement thereof, as the case may be.

“Qualified Capital Stock” of any Person means any Equity Interests of such Person that are not Disqualified Capital Stock.

“Real Property” means, collectively, all right, title and interest (including any leasehold, fee, mineral or other estate) in and to any and all parcels of or interests in real Property owned, leased or operated by any Person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other Property and rights incidental to the ownership, lease or operation thereof.

“Refinancing Amendment” means an amendment to this Agreement in form and substance reasonably satisfactory to the Administrative Agent and Borrower executed by each of (a) Borrower, (b) the Administrative Agent and (c) each New Lender and Lender that agrees to provide any portion of the Other Loans or Other Commitments being incurred or provided pursuant thereto, in accordance with Section 2.19.

“Register” has the meaning set forth in Section 10.04(c).

“Regulation D” means Regulation D of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Regulation U” means Regulation U of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Regulation X” means Regulation X of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof.

“Regulatory Licenses” has the meaning set forth in Section 3.01(a).

“Related Person” means, with respect to any Person, (a) each Affiliate of such Person and each of the officers, directors, partners, trustees, employees, affiliates, shareholders, Advisors, agents, attorneys-in-fact and Controlling Persons of each of the foregoing, and (b) if such Person is an Agent, each other Person designated, nominated or otherwise mandated by or assisting such Agent pursuant to Section 9.05 or any comparable provision of any Loan Document.

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“Release” means any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, disposing, depositing, dispersing, emanating or migrating of any Hazardous Materials in, into, onto, from or through the Environment or any Real Property (including the abandonment or discarding of barrels, containers and other closed receptacles containing any Hazardous Materials).

“Relevant Governmental Body” means the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.

“Repricing Event” means (i) any prepayment or repayment of Loans with the proceeds of, or any conversion of Loans into, any new or replacement tranche of term loans that are broadly marketed or syndicated to banks or other institutional investors bearing interest at an “effective” interest rate less than the “effective” interest rate applicable to the Loans (as such comparative rates are determined by the Administrative Agent in consultation with Borrower), in a transaction the primary purpose of which is to decrease such “effective” interest rate, and (ii) any amendment to the Facility that, directly or indirectly, reduces the “effective” interest rate applicable to the Loans; provided that the primary purpose of such amendment is to decrease such “effective” interest rate (in each case, with original issue discount and upfront fees, which shall be deemed to constitute like amounts of original issue discount, being equated to interest margins in a manner consistent with generally accepted financial practice based on an assumed four-year life to maturity or if less the remaining weighted average life to maturity), including any mandatory assignment in connection therewith with respect to each Lender that refuses to consent to such amendment, in each case, other than in connection with the occurrence of a Change in Control or a Transformative Acquisition.

“Required Lenders” means, at any date of determination, Lenders having Loans and Commitments representing more than 50% of the sum of all Loans outstanding and unused Commitments at such time.

“Reserve Regulations” has the meaning set forth in the definition of “Statutory Reserves.”

“Response” means (a) “response” as such term is defined in CERCLA, 42 U.S.C. § 9601(25) or any words of similar import defined under other applicable Environmental Law, or (b) all other actions required by any Governmental Authority or voluntarily undertaken to (i) clean up, remove, treat, remediate, contain, assess, abate, monitor or in any other way address any Hazardous Materials at, in, on, under or from any Real Property, or otherwise in the Environment, (ii) prevent, stop, control or minimize the Release or threat of Release, or minimize the further Release, of any Hazardous Material, or (iii) perform studies, investigations, maintenance or monitoring in connection with, following, or as a precondition to or to determine the necessity of, the actions set forth in clause (i) or (ii) above.

“Responsible Officer” of any Person means any executive officer or Financial Officer of such Person and any other officer or similar official thereof with significant responsibility for the administration of the obligations of such Person in respect of this Agreement.

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“Restricted Indebtedness” means Indebtedness of any Company, the payment, prepayment, repurchase, defeasance or acquisition for value of which is restricted under Section 6.11(a).

“Retained Excess Cash Flow Amount” means, at any date of determination, an amount equal to (a) the sum of the amounts of Excess Cash Flow for all Excess Cash Flow Periods ending on or before the date of determination for which the amount of Excess Cash Flow shall have been calculated as provided in Section 5.01(c) and with respect to which any payment required under Section 2.10(e) has been paid, minus (b) the sum at the time of determination of the aggregate amount of prepayments required to be made pursuant to Section 2.10(e) through the date of determination calculated without regard to any reduction in such sum that resulted from optional prepayments of the Loans.

“Reuters Screen LIBOR01 Page” has the meaning set forth in the definition of “LIBOR Rate.”

 “Sanctioned Country” means at any time, a country or territory which is itself the subject or target of any Sanctions Laws (including as of the date hereof, Crimea Region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria).

“Sanctions Laws” has the meaning set forth in the definition of “Embargoed Person.”

“Sarbanes-Oxley Act” means the United States Sarbanes-Oxley Act of 2002, as amended from time to time and, and any successor statute.

“Screen Rate” has the meaning set forth in the definition of “LIBOR Rate.”

“SDN List” has the meaning set forth in the definition of “Embargoed Person.”

“SEC” means, the Securities and Exchange Commission (or successors thereto or an analogous Governmental Authority).

“Secured Obligations” means the Obligations (including, for the avoidance of doubt, Obligations in respect of any Incremental Loans permitted hereunder).

“Secured Parties” means, collectively with respect to the Obligations, the Lenders, the Administrative Agent and the Collateral Agent.

“Securities Account Control Agreement” means all Property pledged or granted as collateral pursuant to the Security Agreement delivered on the Closing Date or thereafter pursuant to Section 5.17; provided that, for the avoidance of doubt, Excluded Property shall not constitute Security Agreement Collateral.

“Securities Act” means the Securities Act of 1933, as amended from time to time and, and any successor statute.

“Securities Collateral” has the meaning set forth in the Security Agreement.

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“Security Agreement” means a Security Agreement dated as of the date hereof among the Loan Parties and the Collateral Agent for the benefit of the Secured Parties, as the same may be amended, restated, modified or supplemented from time to time.

“Security Agreement Collateral” means all Property pledged or granted as collateral pursuant to the Security Agreement delivered on the Closing Date or thereafter pursuant to Section 5.11;providedthat, for the avoidance of doubt, Excluded Property shall not constitute Security Agreement Collateral.

“Security Documents” means the Intercreditor and Collateral Agency Agreement, the Security Agreement, each Deposit Account Control Agreement, the Canadian Deed of Hypothec, each Mortgage, and each other security document, deed of hypothec or pledge agreement delivered in accordance with applicable local or foreign Legal Requirements to grant a valid, enforceable, perfected security interest in and Lien on (with the priority required under the Loan Documents) any Property as collateral for the Secured Obligations, and all UCC or other financing statements (including fixture filings and transmitting utility filings, as applicable) or instruments of perfection required by this Agreement, the Security Agreement, the Canadian Deed of Hypothec, or any other such security document or pledge agreement to be filed or registered with respect to the security interest in and Lien on any Property created pursuant to the Security Agreement, the Canadian Deed of Hypothec and any other document or instrument utilized to pledge any Property as collateral for the Secured Obligations.

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

“SOFR-Based Rate” means SOFR, Compounded SOFR or Term SOFR.

“SPC” has the meaning set forth in Section 10.04(h).

“Specified Disposition” means each of the Digital AZ Disposition, the Digital GA Disposition, the Houston Disposition and the iWeb Disposition.

“Specified Lender Advisors” means any financial advisor, auditor, attorney, accountant, appraiser, auditor, business valuation expert, environmental engineer or consultant, turnaround consultant, and other consultants, professionals and experts retained by (i) prior to the Closing Date, the Ad Hoc Group of Lenders or (ii) on or after the Closing Date, the Required Lenders, in each case, taken as a whole.  On the Closing Date, the Specified Lender Advisors include (x) Gibson, Dunn & Crutcher LLP, as legal counsel and (y) Rothschild & Co., as financial advisor.

“Specified Purchase Agreement Representations” means with respect to any Investment that is an acquisition, those representations and warranties made by the seller or Person being acquired or any of its Subsidiaries or Affiliates in the acquisition agreement (however defined) with respect to such acquisition as are material to the interests of the Lenders, but only to the extent that Borrower or any of its Subsidiaries or Affiliates party to such acquisition agreement has a right (a) not to consummate the transactions contemplated by such acquisition agreement or (b) to terminate Borrower’s or any such Subsidiary’s or such Affiliate’s obligations under such acquisition agreement, in each case, as a result of a breach of such representation or warranty made by the seller, the Person to be acquired or any of its Subsidiaries or Affiliates in such acquisition agreement.

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“Specified Representations” means those representations and warranties set forth in Sections 3.01(a), 3.02 (with respect to the entering into, borrowing, guaranteeing under, and performance of the Loan Documents and the granting of Liens in respect of the Collateral), 3.03 (with respect to the entering into, borrowing, guaranteeing under, and performance of the Loan Documents and the granting of Liens in respect of the Collateral), 3.10, 3.11, 3.16, 3.21 and 3.22.

“Statutory Reserves” means, for any day during any Interest Period for any Eurodollar Borrowing, the average maximum rate at which reserves (including any marginal, supplemental or emergency reserves) are required to be maintained, during such Interest Period under regulations issued from time to time (including “Regulation D”) issued by the Board of Governors of the Federal Reserve Bank of the United States (the “Reserve Regulations”) by member banks of the United States Federal Reserve System in New York City with deposits exceeding one billion Dollars against Eurocurrency funding liabilities (currently referred to as “Eurocurrency liabilities” (as such term is used in Regulation D)).  Eurodollar Borrowings shall be deemed to constitute Eurodollar liabilities and to be subject to such reserve requirements without benefit of or credit for proration, exceptions or offsets which may be available from time to time to any Lender under the Reserve Regulations.

“Subordinated Indebtedness” means Indebtedness of any Company that is by its terms subordinated and/or junior in right of payment to all or any portion of the Secured Obligations.

“Subsidiary” means, with respect to any Person (the “parent”) at any date, (i) any Person the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, (ii) any other corporation, limited liability company, association or other business entity of which securities or other ownership interests representing more than 50% of the voting power of all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors thereof are, as of such date, owned, controlled or held by the parent and/or one or more subsidiaries of the parent, (iii) any partnership (a) the sole general partner or the managing general partner of which is the parent and/or one or more subsidiaries of the parent or (b) the only general partners of which are the parent and/or one or more subsidiaries of the parent and (iv) any other Person that is otherwise Controlled by the parent and/or one or more subsidiaries of the parent.  Unless the context requires otherwise, “Subsidiary” refers to a Subsidiary of Borrower.

“Survey” means a survey of any Real Property pursuant to Section 5.11(d) hereof (and all improvements thereon) which is (a) (i) prepared by a surveyor or engineer licensed to perform surveys in the state where such Real Property is located, (ii) dated (or redated) not earlier than six months before the date of delivery thereof unless there shall have occurred within six months before such date of delivery any exterior construction on the site of such Real Property or any easement, right of way or other interest in such Real Property has been granted or become effective through operation of applicable Legal Requirements or otherwise with respect to such Real Property which, in either case, can be depicted on a survey, in which events, as applicable, such survey shall be dated (or redated) after the completion of such construction or if such construction shall not have been completed as of such date of delivery, not earlier than 20 days before such date of delivery, or after the grant or effectiveness of any such easement, right of way or other interest in such Real Property, (iii) certified by the surveyor (in a manner reasonably acceptable to the Required Lenders) to the Administrative Agent, the Collateral Agent and the Title Company, (iv) complying in all respects with the minimum detail requirements of the American Land Title Association as such requirements are in effect on the date of preparation of such survey and (v) sufficient for the Title Company to remove all standard survey exceptions from the title insurance policy (or commitment) relating to such Real Property and issue the endorsements of the type required by Section 4.01 or (b) otherwise reasonably acceptable to the Required Lenders and Collateral Agent.

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“Synthetic Lease” means, as to any Person, (a) any lease (including leases that may be terminated by the lessee at any time) of any Property (i) that is accounted for as an operating lease under GAAP and (ii) in respect of which the lessee retains or obtains ownership of the Property so leased for U.S. federal (or foreign) income tax purposes, other than any such lease under which such Person is the lessor or (b) (i) a synthetic, off-balance sheet or tax retention lease, or (ii) an agreement for the use or possession of Property (including a sale and leaseback transaction), in each case under this clause (b), creating obligations that do not appear on the balance sheet of such Person but which, upon the application of any Insolvency Laws to such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

“Synthetic Lease Obligations” means, as to any Person, an amount equal to the capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a balance sheet of such Person in accordance with GAAP if such obligations were accounted for as Capital Lease Obligations.

“Synthetic Purchase Agreement” means any swap, derivative or other agreement or combination of agreements pursuant to which any Company is or may become obligated to make (a) any payment in connection with a purchase by any third party from a Person other than a Company of any Equity Interest or Restricted Indebtedness or (b) any payment (other than on account of a permitted purchase by it of any Equity Interest or Restricted Indebtedness) the amount of which is determined by reference to the price or value at any time of any Equity Interest or Restricted Indebtedness.

“Tax Returns” means all returns, statements, filings, attachments and other documents or certifications filed or required to be filed in respect of Taxes.

“Taxes” means any and all present or future taxes, duties, levies, imposts, assessments, fees, deductions, withholdings or other similar charges imposed by a Governmental Authority, including any interest, fines, penalties or additions with respect to any of the foregoing.

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

“Test Period” means, at any time, the four consecutive fiscal quarters of Borrower then last ended (in each case taken as one accounting period) for which financial statements have been or are required to be delivered pursuant to Section 5.01(a) or (b).

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“Title Company” means any title insurance company as shall be retained by Borrower and reasonably acceptable to the Administrative Agent and the Required Lenders.

“Title Policy” has the meaning set forth in Section 4.01.

“Total Net Leverage Ratio” means, at any date of determination, the ratio of (i) Consolidated Indebtedness on such date less (A) Finance Lease Obligations for the Test Period then most recently ended on or prior to such date and (B) Unrestricted Cash of the Loan Parties to (ii) Consolidated EBITDA for the Test Period then most recently ended less payments made in cash in respect of Finance Leases during the Test Period then most recently ended on or prior to such date.

“Transaction Expenses” means any fees or expenses incurred or paid by the Loan Parties, or any of their Affiliates in connection with the Chapter 11 Cases, the Exit Transactions, this Agreement and the other Loan Documents.

“Transactions” means, collectively, (a) the execution, delivery and performance of the Loan Documents and the initial Credit Events hereunder, (b) the payment of all fees, costs and expenses to be paid on or before the Closing Date owing in connection with the foregoing and (c) the Exit Transactions.

“Transformative Acquisition” means any acquisition by Borrower or any Subsidiary whether by purchase, merger or otherwise, of all or substantially all of the assets of, or any business line, unit or division of, any Person or of a majority of the outstanding Qualified Capital Stock of any Person that (i) is not permitted by the terms of the Loan Documents immediately prior to the consummation of such acquisition or (ii) if permitted by the terms of the Loan Documents immediately prior to the consummation of such acquisition, the terms of the Loan Documents would not provide Borrower and its Subsidiaries with adequate flexibility for the continuation or expansion of their combined operations following such consummation, as determined by Borrower acting in good faith.

“Type” means, when used in reference to any Loan or Borrowing, a reference to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined on the basis of Adjusted LIBOR Rate or the Alternate Base Rate.

“UCC” means the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or jurisdiction.

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

“U.S. Tax Compliance Certificate” has the meaning specified in Section 2.15(f).

“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.

“Undisclosed Administration” means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or parent company is subject to home jurisdiction supervision if applicable Legal Requirements require that such appointment is not to be publicly disclosed.

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“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the actuarial assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

“United States” and “U.S.” means the United States of America.

“Unrestricted Cash” means unrestricted cash and Cash Equivalents owned by Borrower and its Subsidiaries.

 “Voting Stock” means, with respect to any Person, any class or classes of Equity Interests pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the Board of Directors of such Person.

“Wholly Owned Subsidiary” means, with respect to any Person, (a) any corporation 100% of whose capital stock (other than directors’ qualifying shares to the extent required under applicable Legal Requirements) is at the time owned by such Person and/or one or more Wholly Owned Subsidiaries of such Person and (b) any partnership, association, joint venture, limited liability company or other entity in which such Person and/or one or more Wholly Owned Subsidiaries of such Person have a 100% Equity Interest (other than directors’ qualifying shares to the extent required under applicable Legal Requirements) at such time.

“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.

“Yield Differential” means, with respect to any Loans made pursuant to Section 2.17, (i) the Effective Yield applicable to such Loans, minus (ii) the Effective Yield applicable to the Loans, minus (iii) 50 basis points.

Section 1.02        Classification of Loans and Borrowings.  For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Loan” or “Other Loan”), Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Loan”).  Borrowings also may be classified and referred to Class (e.g., a “Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Loan Borrowing”).

Section 1.03        Terms Generally.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.  The phrase “Material Adverse Effect” shall be deemed to be followed by the phrase “, individually or in the aggregate”.  The words “asset” and “property” shall be construed to have the same meaning and effect.  The word “will” shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise (a) any definition of or reference to any Loan Document, agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth in any Loan Document), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, unless otherwise indicated and (e) any reference to any law or regulation shall (i) include all statutory and regulatory provisions consolidating, amending, replacing or interpreting or supplementing such law or regulation, and (ii) unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time.  This Section 1.03 shall apply, mutatis mutandis, to all Loan Documents.  Each reference herein to documents, agreements or other matters being “satisfactory,” “acceptable,” “reasonably satisfactory” or “reasonably acceptable” (or any expression of similar import) to the Administrative Agent and any term or provision contained herein to be made in the Administrative Agent’s “discretion” or “sole discretion” (or any expression of similar import), such determination may be made by the Administrative Agent at the written direction of the Required Lenders.

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Section 1.04        Accounting Terms; GAAP.  Except as otherwise expressly provided herein, all financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with and all terms of an accounting or financial nature shall be construed and interpreted in accordance with GAAP as in effect from time to time, subject to applicable “fresh-start” accounting principles (or similar treatments).  If at any time any change in GAAP would affect the computation of any financial ratio set forth in any Loan Document or any financial definition of any other provision of any Loan Document, subject to applicable “fresh-start” accounting principles (or similar treatments), and Borrower or the Required Lenders shall so request, the Administrative Agent and Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to approval by the Required Lenders and Borrower); provided that, until so amended, such ratio or requirement shall continue to be computed in accordance with GAAP before such change, and Borrower shall provide to the Administrative Agent and the Lenders within five days after delivery of each certificate or financial report required hereunder that is affected thereby a written statement of a Financial Officer of Borrower setting forth in reasonable detail the differences that would have resulted if such financial statements had been prepared without giving effect to such change.  Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of Borrower or any Subsidiary at “fair value”, as defined therein, (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof and (iii) without giving effect to any valuation of Indebtedness below its full stated principal amount as a result of application of Financial Accounting Standards Board Accounting Standards Update No. 2015-03, it being agreed that such Indebtedness shall at all times be valued at the full stated principal amount thereof.  Notwithstanding anything to the contrary in this Agreement or otherwise, (1) all liabilities under or in respect of any lease, whether now outstanding or any time entered into, incurred (including as a result of a refinancing or an acquisition otherwise permitted by this Agreement), amended or otherwise modified, that was treated (or, in the case of a refinancing, the original lease on the applicable asset was treated) as rental and lease expense on the Closing Date shall not constitute a capital lease obligation or Indebtedness for any purpose under the Loan Documents, and (2) all liabilities under or in respect of any lease that was entered into or incurred (including as a result of a refinancing or an acquisition otherwise permitted by this Agreement) after the Closing Date, is not a Synthetic Lease, and, after giving effect to any amendment or other modification thereto, would have been treated as rental and lease expense and not as a capital lease obligation under GAAP as in effect on the Closing Date, shall not constitute a capital lease obligation or Indebtedness for any purpose under the Loan Documents.

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Without limiting the foregoing, if at any time the SEC permits or requires United States reporting companies to use IFRS in lieu of GAAP for reporting purposes, Borrower may notify the Administrative Agent that it has elected to so use IFRS in lieu of GAAP and, upon any such notice, references herein to GAAP shall thereafter be construed to mean IFRS as in effect from time to time; providedthat, to the extent that such election would affect any financial ratio set forth in this Agreement or any requirement set forth in Section 5.01, (i) Borrower shall provide to the Administrative Agent financial statements and other documents reasonably requested by the Administrative Agent or any Lender setting forth a reconciliation with respect to such ratio or requirement made before and after giving effect to such election and (ii) if Borrower, the Administrative Agent or the Required Lenders shall so request, the Administrative Agent, the Required Lenders and Borrower shall negotiate in good faith to amend such ratio to preserve the original intent thereof in light of such change.

Section 1.05       Effectuation of Exit Transactions.  All references herein to Borrower and its Subsidiaries shall be deemed to be references to such Persons, and all the representations and warranties of Borrower and the other Loan Parties contained in this Agreement and the other Loan Documents shall be deemed made, in each case, after giving effect to the Exit Transactions to occur on the Closing Date, unless the context otherwise require.

Section 1.06       Resolution of Drafting Ambiguities.  Each Loan Party acknowledges and agrees that it was represented by counsel in connection with the execution and delivery of the Loan Documents to which it is a party, that it and its counsel reviewed and participated in the preparation and negotiation hereof or thereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the interpretation hereof or thereof.

Section 1.07        Division.  For all purposes under the Loan Documents, in connection with any division or plan of division under the Delaware Limited Liability Company Act (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person that is a limited liability company 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.

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Section 1.08       Rates.  The Administrative Agent does not warrant or accept responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to any of the rates referred to in the definitions of “LIBOR Rate”, “Adjusted LIBOR Rate”, “Base Rate”, “Alternate Base Rate” or “Benchmark Replacement” or any components of any rate thereof, or with any comparable or successor rate for any thereto, or replacement rate for any therefor.

Section 1.09        Limited Condition Transactions.  In connection with any action being taken solely in connection with a Limited Condition Transaction, for purposes of:

(a)          determining compliance with any provision of this Agreement that requires the calculation of a financial maintenance or incurrence covenant;

(b)          so long as no Event of Default exists at the time the Limited Condition Transaction is consummated, determining the accuracy of representations and warranties and/or whether a Default or Event of Default shall have occurred and be continuing (or any subset of Defaults or Events of Default); or

(c)          testing availability under baskets set forth in this Agreement (including baskets measured as a percentage of Consolidated EBITDA or by reference to the Cumulative Credit Availability);

in each case, at the option of Borrower (Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCA Election”), with such option to be exercised on or prior to the date of execution of the definitive agreements related to such Limited Condition Transaction, the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “LCA Test Date”), and if, after giving pro forma effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness or Liens and the use of proceeds thereof) as if they had occurred at the beginning of the most recent Test Period ending prior to the LCA Test Date, Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratio or basket, such ratio or basket shall be deemed to have been complied with.

For the avoidance of doubt, if Borrower has made an LCA Election and any of the ratios or baskets for which compliance was determined or tested as of the LCA Test Date are exceeded as a result of fluctuations in any such ratio or basket, including due to fluctuations in Consolidated EBITDA of Borrower or the Person subject to such Limited Condition Transaction, at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations; however, if any ratios improve or baskets increase as a result of such fluctuations, such improved ratios or baskets may be utilized.  If Borrower has made an LCA Election for any Limited Condition Transaction, then in connection with any subsequent calculation of the incurrence ratios subject to the LCA Election on or following the relevant LCA Test Date and prior to the earlier of (i) the date on which such Limited Condition Transaction is consummated or (ii) the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Indebtedness or Liens and the use of proceeds thereof) have been consummated.

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Section 1.10        Interpretation Clause (Québec). For purposes of any Collateral located in the Province of Québec or charged by any deed of hypothec (or any other Loan Document) and for all other purposes pursuant to which the interpretation or construction of a Loan Document may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (a) “personal property” shall be deemed to include “movable property”, (b) “real property” shall be deemed to include “immovable property”, (c) “tangible property” shall be deemed to include “corporeal property”, (d) “intangible property” shall be deemed to include “incorporeal property”, (e) “security interest”, “mortgage” and “lien” shall be deemed to include a “hypothec”, “prior claim” and a “resolutory clause”, (f) all references to filing, registering or recording under the UCC (or analogous filing in the jurisdiction of the applicable Loan Party) shall be deemed to include publication under the Civil Code of Québec, (g) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to an “opposable” or “set up” Liens as against third parties, (h) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (i) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall be deemed to include a “mandatary”, (k) “construction liens” shall be deemed to include “legal hypothecs”, (l) “joint and several” shall be deemed to include “solidary”, (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (n) “beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary”, (o) “easement” shall be deemed to include “servitude”, (p) “survey” shall be deemed to include “certificate of location and plan”, (q) “fee simple title” shall be deemed to include “absolute ownership” and (r) “foreclosure” shall be deemed to include the “exercise of a hypothecary right”.  The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only (except if another language is required under any applicable law) and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only. Les parties aux présentes confirment leur volonté que la présente convention ainsi que tous autres documents se rattachant aux transactions visées par les présentes soient rédigés en anglais seulement (à moins que le droit applicable exige autrement) et que tous autres documents visés ou s’y rattachant, y compris des avis, puissent être rédigés aussi en anglais seulement.

ARTICLE II

THE CREDITS

Section 2.01       Commitments.  Subject to the terms and conditions and relying upon the representations and warranties herein set forth, to give effect to the conversion of, and to refinance and reevidence, the Obligations under and as defined in the Pre-Petition Credit Agreement (other than Obligations consisting of issued Letters of Credit under and as defined in the Pre-Petition Credit Agreement) owing to each Lender, Borrower agrees to issue hereunder to each Lender, and each Lender severally agrees to make hereunder and shall be deemed to have made hereunder to Borrower, on the Closing Date, in a single term loan borrowing denominated in Dollars in a principal amount equal to such Lender’s Commitment on the Closing Date, and the Obligations under and as defined in the Pre-Petition Credit Agreement (other than Obligations consisting of issued Letters of Credit under and as defined in the Pre-Petition Credit Agreement) owing to the Lenders shall be substituted with and exchanged for (and reevidenced and refinanced by) such Loans hereunder.  The Loans deemed made or issued pursuant this Section 2.01 shall be deemed made without any actual funding.  Upon the effectiveness of this Agreement, all Commitments of the Lenders shall be deemed fully-funded and such Commitments shall be deemed to be reduced to $0 and interest shall begin to accrue on the full amount thereof as of such date.  As of the Closing Date, all Loans shall be Eurodollar Loans with an Interest Period of one-month.

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Section 2.02        Loan Amounts. Unless the context otherwise requires, for all purposes hereof, references to “principal amount” or “principal” of Loans refers to the original face amount of the Loans, less where applicable any previous principal prepayments, plus any increase in the principal amount of the outstanding Loans as a result of PIK Interest. The entire unpaid balance of principal resulting from PIK Interest shall be due and payable in full in immediately available funds on the Loan Maturity Date, together with accrued and unpaid Obligations pertaining thereto then due and payable.

Section 2.03        [Reserved].

Section 2.04        Evidence of Debt; Repayment of Loans.

(a)          Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender, the principal amount of each Loan of such Lender on the Loan Maturity Date, and to the extent not previously irrevocably paid in full in cash, all Loans and Obligations shall be due and payable on the Loan Maturity Date. All amounts borrowed and repaid hereunder shall not be reborrowed.

(b)          Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of Borrower to such Lender resulting from each Loan made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement.

(c)          The Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder (including, for the avoidance of doubt, any increases in principal as a result of PIK Interest), the Type and Class thereof and the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from Borrower to each Lender hereunder (which shall reflect the increase in the principal amount of the Loans as a result of the payment of PIK Interest pursuant to Section 2.06(f)) and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

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(d)          The entries made in the accounts maintained pursuant to Sections 2.04(b) and (c) shall be conclusive, absent manifest error, evidence of the existence and amounts of the obligations therein recorded; providedthat the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of Borrower and the other Loan Parties to pay, and perform, the Obligations in accordance with the Loan Documents.  In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such entries, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

(e)          Any Lender by written notice to Borrower (with a copy to the Administrative Agent) may request that Loans of any Class made by it be evidenced by a promissory note.  In such event, Borrower shall promptly (and, in all events, within five (5) Business Days of receipt), execute and deliver to such Lender, a promissory note payable to such Lender and its registered assigns in the form of Exhibit I, as the case may be.  Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 10.04) be represented by one or more promissory notes in such form payable to the Lender and its registered assigns.

Section 2.05        Fees.

(a)         Administrative Agent Fees.  Borrower agrees to pay to the Administrative Agent and the Collateral Agent, for its own account, the fees set forth in the Fee Letter and such other fees payable in the amounts and at the times separately agreed upon between Borrower and the Administrative Agent (the “Administrative Agent Fees”).

(b)          Payment of Fees.  All Fees shall be paid on the dates due, in immediately available funds in Dollars, to the Administrative Agent for distribution, if and as appropriate, among the Lenders.  Once paid, none of the Fees that are required to be paid hereunder shall be refundable under any circumstances.

Section 2.06        Interest on Loans

(a)          Cash Interest.

(i)          Depending upon Borrower’s election from time to time, subject to the terms hereof, to have portions of the Loans accrue interest determined by reference to the Alternate Base Rate or the Adjusted LIBOR Rate, the Loans and the other Obligations shall bear interest from the date made (or deemed made) to repayment (whether by acceleration or otherwise) thereof at the applicable rates set forth below (the amount of interest due pursuant to this clause (a)(i) for any accrued interest period, the “Cash Pay Interest”):

(1)          if an ABR Borrowing, or any past due Obligation other than a Eurodollar Borrowing, then at the sum of the Alternate Base Rate determined for such day, plus the Applicable Cash Margin, and

(2)          if a Eurodollar Borrowing, then at a rate per annum equal to the Adjusted LIBOR Rate in effect from time to time for Eurodollar Borrowings for the Interest Period in effect for such Borrowing plus the Applicable Cash Margin.

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provided that, Borrower may elect from time to time, upon written notice delivered to Administrative Agent at least three (3) Business Days prior to the applicable Interest Payment Date, to pay Cash Pay Interest in the form of PIK Interest on such Interest Payment Date in an amount not to exceed 2.00% per annum of the aggregate outstanding principal amount of the Loans (the amount of Cash Pay Interest so elected to be paid in PIK Interest, the “Designated Cash Pay PIK Interest”).

(ii)          Eurodollar Loans comprising a Borrowing shall at all times have the same Interest Period;

(b)          PIK Interest. All Loans shall also bear interest at a rate of 3.50% per annum in the form of PIK Interest for the period from and including the Closing Date through repayment (whether by acceleration or otherwise) thereof, payable in kind on each Interest Payment Date by adding the amount of such PIK Interest to the principal amount of the Loans.

(c)          Notwithstanding the foregoing, at any time while an Event of Default has occurred and is continuing, the overdue principal amount of any Loans and, to the extent permitted by applicable law, all overdue interest in respect of each Loan, and all overdue fees or other overdue amounts owed in respect of the Obligations shall be payable upon demand and shall bear interest, after as well as before judgment, at a per annum rate equal to (i) in the case of principal (including, for the avoidance of doubt, any increases thereof as a result of PIK Interest) of or interest on any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided in Sections 2.06(a) and (b), or (ii) in the case of any other Obligation, 2.00% plus the rate applicable to ABR Loans as provided in Section 2.06(a) (in either case, the “Default Rate”).

(d)          Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to Section 2.06(c) (including interest on past due interest) and all interest accrued but unpaid on or after Loan Maturity Date, in the case of any Extended Loans, the applicable Extended Loan Maturity Date, or in the case of any Other Loan, the applicable maturity date of such Other Loan as specified in the applicable Refinancing Amendment, as applicable, shall be payable on demand, (ii) in the event of any repayment or prepayment of any, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan before the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(e)          All interest (including PIK Interest) hereunder shall be computed on the basis of a year of 360 days, except that interest (including PIK Interest) computed by reference to the Alternate Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day); provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.14, bear interest for one day.  The applicable Alternate Base Rate or Adjusted LIBOR Rate shall be determined by the Administrative Agent in accordance with the provisions of this Agreement and such determination shall be conclusive and binding absent manifest error.  Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any Insolvency Proceeding.

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(f)          For the purposes of the Interest Act (Canada) and disclosure thereunder, whenever any interest or any fee to be paid under any Loan Document is to be calculated on the basis of a 360-day or 365-day year, the yearly rate of interest to which the rate used in such calculation is equivalent is the rate so used multiplied by the actual number of days in the calendar year in which the same is to be ascertained and divided by 360 or 365, as applicable.  The rates of interest under this Agreement are nominal rates, and not effective rates or yields.  The principle of deemed reinvestment of interest does not apply to any interest calculation under this Agreement. Any provision of this Agreement that would oblige a Canadian Loan Party to pay any fine, penalty or rate of interest on any arrears of principal or interest secured by a mortgage on real property or hypothec on immovables that has the effect of increasing the charge on arrears beyond the rate of interest payable on principal money not in arrears shall not apply to such Canadian Loan Party, which shall be required to pay interest on money in arrears at the same rate of interest payable on principal money not in arrears.  If any provision of this Agreement would oblige a Canadian Loan Party to make any payment of interest or other amount payable to any Secured Party in an amount or calculated at a rate which would be prohibited by applicable law or would result in a receipt by that Secured Party of “interest” at a “criminal rate” (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by law or so result in a receipt by that Secured Party of “interest” at a “criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows: (A) first, by reducing the amount or rate of interest required to be paid to the affected Secured Party; and (B) thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid to the affected Lender which would constitute interest for purposes of section 347 of the Criminal Code (Canada).

Section 2.07        Termination of Commitments.  The Commitments shall automatically terminate upon the deemed making of the Loans in accordance with the provisions of Section 2.01.

Section 2.08        Interest Elections.

(a)          As of the Closing Date, all Loans shall be Eurodollar Loans with an Interest Period of one-month.  Thereafter, Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.08.  Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.  Notwithstanding anything to the contrary Borrower shall not be entitled to request any conversion or continuation that, if made, would result in more than five (5) Eurodollar Borrowings outstanding hereunder at any one time.

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(b)          To make an election pursuant to this Section 2.08, Borrower shall deliver, by hand delivery or facsimile (or by other electronic transmission), a duly completed and executed Interest Election Request to the Administrative Agent, (i) in the case of a Eurodollar Borrowing not later than 1:00 p.m. New York City time, two (2) Business Days before the date of the proposed Borrowing and (ii) in the case of an ABR Borrowing, not later than 10:00 a.m., New York City time, on the date of the proposed Borrowing.  Each Interest Election Request shall be irrevocable.

(c)          Each Interest Election Request shall specify the following information in compliance with Section 2.02:

(i)          the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, or if outstanding Borrowings are being combined, allocation to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);

(ii)          the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;

(iii)          whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and

(iv)          if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period”.

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then Borrower shall be deemed to have selected an Interest Period of one month’s duration.

(d)          Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.

(e)          If an Interest Election Request with respect to a Eurodollar Borrowing is not timely delivered before the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to a Eurodollar Borrowing with an Interest Period of one month.  Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing, the Administrative Agent or the Required Lenders may require, by notice to Borrower, that (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

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Section 2.09       Maturity.  To the extent not previously irrevocably paid in full in cash, subject to Payment in Full of the First Out Obligations, all Loans shall be due and payable on the Loan Maturity Date, each Extended Loans shall be due and payable on the applicable Extended Loan Maturity Date and each Other Loan shall be due and payable on its respective maturity date specified in its respective Refinancing Amendment.

Section 2.10        Optional and Mandatory Prepayments of Loans.

(a)          Optional Prepayments. Subject to Section 2.10(h), Borrower shall have the right at any time and from time to time to prepay any Borrowing, in whole or in part, subject to the requirements of this Section 2.10;providedthat each partial prepayment shall be in an amount that is an integral multiple of $250,000 and not less than $500,000.

(b)          Asset Sales.  Subject to Section 2.10(h), not later than three (3) Business Days following the receipt of any Net Cash Proceeds of any Asset Sale by any Company, Borrower shall apply an amount equal to 100% of such Net Cash Proceeds to make prepayments in accordance with Section 2.10(g); provided that up to $10,000,000 of such Net Cash Proceeds in respect of the Houston Disposition may be retained by Borrower or its Subsidiaries and used for general corporate purposes in accordance with a budget prepared by Borrower and delivered to the Administrative Agent and the Lenders and approved by the Required Lenders.

(c)          Debt Issuance, Preferred Stock Issuance.  Subject to Section 2.10(h), not later than one (1) Business Day following the receipt of any Net Cash Proceeds of any Debt Issuance by any Company or of any Preferred Stock Issuance by Borrower of Disqualified Capital Stock, Borrower shall make prepayments in accordance with Section 2.10(g) in an aggregate principal amount equal to 100% of such Net Cash Proceeds.

(d)          Casualty Events.  Subject to Section 2.10(h), not later than five (5) Business Days following the receipt of any Net Cash Proceeds from a Casualty Event by any Company, Borrower shall apply an amount equal to 100% of such Net Cash Proceeds to make prepayments in accordance with Section 2.10(g); providedthat: so long as no Event of Default shall then exist or would arise immediately therefrom, such proceeds shall not be required to be so applied on such date to the extent that (A) in the event such Net Cash Proceeds shall not exceed $2,500,000 per Casualty Event or $5,000,000 in Net Cash Proceeds in any fiscal year of Borrower, Borrower shall have delivered an Officers’ Certificate to the Administrative Agent on or before such date stating that such proceeds are reasonably expected to be used, or (B) in the event that such Net Cash Proceeds equals or exceeds $2,500,000 per Casualty Event or $5,000,000 in Net Cash Proceeds in any fiscal year of Borrower, Borrower has elected by written notice to the Administrative Agent on or before such date to require such proceeds to be used, in each case, to repair, replace or restore any Property in respect of which such Net Cash Proceeds were paid or to reinvest in fixed or capital assets of any Loan Party, no later than 365 days following the date of receipt of such proceeds (which Officers’ Certificate shall set forth the estimates of the proceeds to be so expended).

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(e)          Excess Cash Flow.  No later than the earlier of (i) 120 days after the end of each Excess Cash Flow Period and (ii) the date on which the financial statements with respect to such fiscal year in which such Excess Cash Flow Period occurs are delivered pursuant to Section 5.01(a), Borrower shall make prepayments in accordance with Section 2.10(g) in an aggregate principal amount equal to (A) (x) 75% of Excess Cash Flow for the Excess Cash Flow Period then ended if the Total Net Leverage Ratio at the end of such period is greater than or equal to 3:0:1.0 and (y) 50% of Excess Cash Flow for the Excess Cash Flow Period then ended if the Total Net Leverage Ratio at the end of such period is less than 3.0:1.0 minus (B) (x) the aggregate principal amount of optional prepayments of Loans pursuant to Section 2.10(a) made during such Excess Cash Flow Period or, at Borrower’s option, after such Excess Cash Flow Period and prior to the date such Excess Cash Flow payment is required to be made under this Section 2.10(e), in each case, to the extent such prepayment (1) does not occur in connection with a refinancing of all or a portion of such Loans and (2) is made with Internally Generated Funds, (y) if immediately after giving effect to the prepayment required under this clause (e), Borrower and its Subsidiaries would not have Unrestricted Cash on the balance sheet in an aggregate amount of at least $15,000,000, an amount not to exceed the amount necessary (if any) to cause Borrower and its Subsidiaries to have Unrestricted Cash on the balance sheet in an aggregate amount of $15,000,000, after giving pro forma effect to the prepayment required under this clause (e) and (z) amounts retained in the good faith judgement of Borrower to fund growth Capital Expenditures, provided, however, any amounts pursuant to this clause (y) that are not expended by Borrower or its Subsidiaries by June 30 of the calendar year immediately following the end of such Excess Cash Flow Period shall constitute Excess Cash Flow for such Excess Cash Flow Period.

(f)          Foreign Subsidiaries.  Notwithstanding any other provisions of this Section 2.10, and subject to Section 2.10(h), mandatory prepayments as a result of Section 2.10(b) in respect of a Foreign Subsidiary (i) may be retained by the applicable Foreign Subsidiary to the extent the making of any such mandatory prepayment from the Net Cash Proceeds of any Asset Sale of any property or assets referred to in Section 2.10(b) received by any Foreign Subsidiary would give rise to a materially adverse tax consequence as reasonably determined in good faith by Borrower in consultation with the Administrative Agent and the Required Lenders (taking into account any foreign tax credit or benefit received in connection with such repatriation and after Borrower and the applicable Foreign Subsidiary have used commercially reasonable efforts to mitigate such materially adverse tax consequence in order to make such prepayments) and may be retained by the applicable Foreign Subsidiary so long as such material adverse tax consequence continues to exist; provided that the aggregate amount of mandatory prepayments that have not been applied to the prepayment of the Loans pursuant to this subclause (f) shall not exceed $10,000,000 during the life of this Agreement; provided, further, that such Net Cash Proceeds of any such Asset Sale of any property or assets referred to in Section 2.10(b) shall be applied to prepay any Indebtedness of a Foreign Subsidiary permitted to be prepaid by this Agreement or reinvested in the business of any Company as permitted to be reinvested by this Agreement; provided, further, that if an Event of Default is then continuing, no prepayment of any such Indebtedness (other than any prepayment required by the terms of such Indebtedness) or reinvestments shall be permitted, and (ii) may be retained if prohibited under applicable local law (as reasonably determined by Borrower); provided that such amounts may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the United States (Borrower hereby agreeing to cause the applicable Foreign Subsidiary to use commercially reasonable efforts to take such actions required by the applicable local law to permit such repatriation), and once such repatriation is permitted under the applicable local law, unless such prepayment amount may be retained under foregoing clause (i), such repatriation shall be promptly effected.

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(g)          Prepayments, if any, required or optionally made pursuant to this Section 2.10 shall be applied to repay the principal amount of the Loans, Extended Loans, Incremental Loans and Other Loans, on a pro rata basis, plus any interest accrued and unpaid on such Loans, Extended Loans, Incremental Loans and Other Loans, on a pro rata basis, as applicable.

(h)          Notwithstanding anything to the contrary set forth herein or in any other Loan Document, (i) no optional prepayment shall be permitted or required hereunder until after Payment in Full of the First Out Obligations, unless such payments are expressly permitted under the First Out Term Loan Credit Agreement and the Intercreditor and Collateral Agency Agreement and (ii) no mandatory prepayment shall be permitted or required hereunder until after Payment in Full of the First Out Obligations.

Section 2.11         Alternate Rate of Interest.

(a)          If before the commencement of any Interest Period for a Eurodollar Borrowing:

(i)          the Administrative Agent determines (which determination shall be final and conclusive absent manifest error) either (i) that Dollar deposits in the principal amounts of the Loans comprising the applicable Borrowing are not generally available in the London interbank market or (ii) that adequate and reasonable means (including by means of an Interpolated Rate) do not exist for ascertaining the Adjusted LIBOR Rate for such Interest Period; provided that in each case, that no Benchmark Transition Event shall have occurred at such time; or

(ii)          the Administrative Agent is advised in writing by the Required Lenders that the Adjusted LIBOR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;

then the Administrative Agent shall give written notice thereof to Borrower and the Lenders as promptly as practicable thereafter and, until the Administrative Agent notifies Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, each Eurodollar Borrowing shall be converted into an ABR Loan on the last day of the then current Interest Period applicable thereto.

(b)          Notwithstanding anything to the contrary herein or in any other Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Administrative Agent and Borrower may amend this Agreement to replace the LIBOR Rate with a Benchmark Replacement.  Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Administrative Agent has posted such proposed amendment to all Lenders and Borrower, so long as the Administrative Agent has not received, by such time, written notice of objection to such proposed amendment from Lenders comprising the Required Lenders; provided that, with respect to any proposed amendment containing any SOFR-Based Rate, the Lenders shall be entitled to object only to the Benchmark Replacement Adjustment contained therein.  Any such amendment with respect to an Early Opt-in Election will become effective on the date that Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that such Required Lenders accept such amendment.  No replacement of LIBOR Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date.

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(c)          In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.

(d)          The Administrative Agent will promptly notify Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable and its related Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period.  Any determination, decision or election that may be made by the Administrative Agent or Lenders pursuant to this Section 2.11, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 2.11.

(e)          Upon Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, (i) the Loans shall cease to be Eurodollar Loans and (ii) all Loans shall convert to, and continue as, ABR Loans.

Section 2.12        Increased Costs; Change in Legality.

(a)          If any Change in Law shall:

(i)          impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge, liquidity or similar requirement against Property of, deposits with or for the account of, or credit extended by or participated in by, any Lender (except any such reserve requirement reflected in the Adjusted LIBOR Rate);

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(ii)         impose on any Lender or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Loans made by such Lender; or

(iii)      subjects the Administrative Agent or any Lender to any Taxes (other than (A) Indemnified Taxes and Other Taxes indemnified pursuant to Section 2.15 and (B) Excluded Taxes) on its Loans, principal, letters of credit, Commitments, or other Obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

and the result of any of the foregoing shall be to increase the cost to the Administrative Agent or such Lender, as applicable, by an amount deemed by such recipient to be material of making, converting to or from, continuing or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan)or to reduce the amount of any sum received or receivable by the Administrative Agent or such Lender hereunder by an amount deemed by the Administrative Agent or such Lender to be material (whether of principal, interest or otherwise), then Borrower will pay to the Administrative Agent or such Lender, as the case may be, such additional amount or amounts as will compensate the Administrative Agent or such Lender, as the case may be, for such additional costs incurred or reduction suffered.  The protection of this Section 2.12 shall be available to the Administrative Agent and each Lender regardless of any possible contention of the invalidity or inapplicability of the Change in Law that shall have occurred or been imposed.

(b)          If any Lender determines (in good faith, but in its sole absolute discretion) that any Change in Law regarding Capital Requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company by any amount deemed by such Lender to be material, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy or liquidity), then from time to time Borrower will pay to such Lender, as the case may be, such additional amount or amounts as will compensate such Lender or such Lender’s holding company, for any such reduction suffered.

(c)          A certificate of a Lender (or the Administrative Agent, to the extent applicable) setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 2.12(a) or (b) shall be delivered to Borrower (with a copy to the Administrative Agent) and shall be conclusive and binding absent manifest error; provided, however, that such certificate need not include any confidential or price sensitive information or any information that is prohibited by applicable Legal Requirements from being disclosed.  Borrower shall pay such Lender, as the case may be, the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof.

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(d)          Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.12 shall not constitute a waiver of such Lender’s right to demand such compensation; providedthat Borrower shall not be required to compensate a Lender for any increased costs or reductions incurred more than 180 days before the date that such Lender, as the case may be, notifies Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided,further,that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180‑day period referred to above shall be extended to indicate the period of retroactive effect thereof.

(e)          Notwithstanding any other provision of this Agreement, if any Change in Law shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any Eurodollar Loan, then, by written notice to Borrower and to the Administrative Agent:

(i)          such Lender may declare that Eurodollar Loans will not thereafter (for the duration of such unlawfulness (as determined in good faith by such Lender)) be made by such Lender hereunder (or be continued for additional Interest Periods and ABR Loans will not thereafter (for such duration) be converted into Eurodollar Loans), whereupon any request for a Eurodollar Loan (or to convert an ABR Loan to a Eurodollar Loan or to continue a Eurodollar Loan for an additional Interest Period) shall, as to such Lender only, be deemed a request for an ABR Loan (or a request to continue an ABR Loan as such for an additional Interest Period or to convert a Eurodollar Loan into an ABR Loan, as the case may be), unless such declaration shall be subsequently withdrawn by such Lender by written notice to Borrower and to the Administrative Agent; and

(ii)          such Lender may require that all outstanding Eurodollar Loans made by it be converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically converted to ABR Loans as of the effective date of such notice as provided in Section 2.12(f).

In the event any Lender shall exercise its rights under clause (i) or (ii) above, all payments and prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion of, such Eurodollar Loans.

(f)          For purposes of Section 2.12(e), a notice to Borrower by any Lender shall be effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest Period then applicable to such Eurodollar Loan; in all other cases such notice shall be effective on the date of receipt by Borrower.

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Section 2.13       Breakage Payments.  In the event of (a) the payment or prepayment, whether optional or mandatory, of any principal of any Eurodollar Loan earlier than the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan earlier than the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Loan on the date specified in any notice delivered pursuant hereto or (d) the assignment of any Eurodollar Loan earlier than the last day of the Interest Period applicable thereto as a result of a request by Borrower pursuant to Section 2.16, then, in any such event, Borrower shall compensate each Lender for the loss, cost and expense attributable to such event and any liquidation or deployment of deposits required by such Lender to make, maintain or convert to such Loan.  In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBOR Rate (together with any interest payable at the Default Rate, if then applicable, but excluding loss of margin or anticipated profit) that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for Dollar deposits of a comparable amount and period from other banks in the Eurodollar market, whether or not such Loan was in fact so funded.  A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.13 shall be delivered to Borrower (with a copy to the Administrative Agent) and shall be conclusive and binding absent manifest error.  Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) Business Days after receipt thereof; provided, however, that such certificate need not include any confidential or price sensitive information or any information that is prohibited by applicable Legal Requirements from being disclosed.

Section 2.14        Payments Generally; Pro Rata Treatment; Sharing of Setoffs.

(a)          Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, or fees, or of amounts payable under Section 2.10(g), 2.12, 2.13 or 2.15, or otherwise) on or before the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, before 1:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff, deduction or counterclaim.  Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon.  All such payments shall be made to the Administrative Agent’s Account, except that payments pursuant to Sections 2.12, 2.13, 2.15 and 10.03 shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein.  The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof.  If any payment under any Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.  All payments under each Loan Document shall be made in Dollars.

(b)          If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees and other amounts then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties, and (iii) third, towards the payment of all other Obligations then due hereunder, ratably among the parties entitled thereto in accordance with the amount of such amounts then due to such parties.

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(c)          If any Lender shall, by exercising any right of setoff or counterclaim (including pursuant to Section 10.08) or otherwise (including by exercise of its rights under the Security Documents), obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans; providedthat (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this Section 2.14(c) shall not be construed to apply to any payment made by or on behalf of Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any Eligible Assignee or participant, other than to any Company or any Affiliates thereof (as to which the provisions of this Section 2.14(c) shall apply).  Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Legal Requirements, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.  If under applicable Insolvency Law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this Section 2.14(c) applies, such Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of such Secured Party under this Section 2.14(c) to share in the benefits of the recovery of such secured claim.

(d)          Unless the Administrative Agent shall have received written notice from Borrower before the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that Borrower will not make such payment, the Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due.  In such event, if Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules or practices on interbank compensation.

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(e)          If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.14(d), 2.17(d), 2.18(d), 2.18(e) or 10.03(e), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Section 2.15        Taxes.Any and all payments by or on account of any obligation of the Loan Parties hereunder or under any other Loan Document shall be made without deduction or withholding for any and all Taxes, except as required by applicable Legal Requirements.  If applicable Legal Requirements (as determined in the good faith discretion of an applicable Loan Party or the Administrative Agent) require the deduction or withholding of any Tax from any such payment by such Loan Party or the Administrative Agent, then (i) if the Tax in question is an Indemnified Tax or Other Tax the sum payable by the applicable Loan Party shall be increased as necessary so that after making all required deductions (including deductions or withholdings applicable to additional sums payable under this Section 2.15) the Administrative Agent, any Lender, as the case may be, receives an amount equal to the sum it would have received had no such deductions, reductions or withholdings been made, (ii) the relevant Loan Party, if applicable, shall make such deductions, reductions or withholdings and (iii) the relevant Loan Party, if applicable, shall timely pay the full amount deducted, reduced or withheld to the relevant Governmental Authority in accordance with applicable Legal Requirement

(b)          In addition, the Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable Legal Requirements, or at the option of the Administrative Agent timely reimburse it for payment of, any Other Taxes.

(c)          The Loan Parties shall jointly and severally indemnify the Administrative Agent and each Lender, within ten (10) Business Days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid or payable by the Administrative Agent or such Lender, as the case may be, on or with respect to any payment by or on account of any obligation of any Loan Party hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.15) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to Borrower by a Lender(in each case, with a copy delivered concurrently to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender shall be conclusive absent manifest error.

(d)          Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that a Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.04(e) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).

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(e)          As soon as practicable after any payment of Taxes and in any event within twenty (20) Business Days following any such payment being due, by any Loan Party to a Governmental Authority, Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the Tax Return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(f)          Each Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments under any Loan Document shall deliver to Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable Legal Requirements and at the time or times reasonably requested by Borrower or the Administrative Agent, such properly completed and executed documentation prescribed by applicable Legal Requirements or reasonably requested by Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, at the time or times prescribed by applicable Legal Requirements and at the time or times reasonably requested by Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower or the Administrative Agent as will enable Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution, and submission of such documentation shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.  Without limiting the generality of the foregoing, (i) each Foreign Lender shall, to the extent it is legally entitled to do so, furnish to Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or the Administrative Agent), whichever of the following is applicable:  (A) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable, (or any successor forms) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable, (or any successor forms) establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty, (B) two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8ECI (or any successor forms), (C) in the case of a Foreign Lender claiming the benefits of the exemption from U.S. federal withholding tax under Section 871(h) or Section 881(c) of the Code, (x) two accurate and originally executed certificates substantially in the form of Exhibit L-1 (a “U.S. Tax Compliance Certificate”) certifying that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, is not a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and (y) two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, as applicable, (or any successor forms), or (D) to the extent a Foreign Lender is not the beneficial owner, two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8IMY (or any successor forms), accompanied by two accurate and complete originally executed U.S. Internal Revenue Service Forms W-8ECI, U.S. Internal Revenue Service Forms W-8BEN or W-8BEN-E, U.S. Tax Compliance Certificates substantially in the form of Exhibit L-2 or Exhibit L-3, U.S. Internal Revenue Service Forms W-9, and/or other certification documents (or any successor forms), as applicable, from each beneficial owner that would be required under this Section 2.15(f) if such beneficial owner were a lender; provided that if the Foreign Lender is a partnership for U.S. federal income tax purposes (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit L-4 on behalf of each such direct and indirect partner, and (E) two accurate and complete originally executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax together with such supplementary documentation as may be prescribed by applicable law to permit Borrower or the Administrative Agent to determine the withholding or deduction required to be made and (ii) any Lender that is not a Foreign Lender shall on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or the Administrative Agent) furnish to Borrower and the Administrative Agent two accurate and complete originally executed U.S. Internal Revenue Service Forms W-9 (or any successor forms) certifying that such Lender is exempt from U.S. federal backup withholding Tax.  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 Borrower and the Administrative Agent in writing of its legal inability to do so.

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(g)          If a payment made to a Lender under any Loan Document may be subject to U.S. federal withholding tax under FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by Borrower or the Administrative Agent, such documentation prescribed by applicable Legal Requirements and such additional documentation reasonably requested by Borrower or the Administrative Agent to comply with its withholding obligations, to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this Section 2.15(g), the term “FATCA” shall include any amendments to FATCA after the date hereof.

(h)          If the Administrative Agent or a Lender (or an assignee) determines in its sole discretion exercised in good faith, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by Borrower (or with respect to which Borrower’s payment of additional amounts pursuant to this Section 2.15), it shall pay over an amount equal to such refund to Borrower within a reasonable period and in any event within twenty (20) Business Days of such determination, net of all out-of-pocket expenses (including Taxes) of the Administrative Agent or such Lender (or assignee) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, however,that if the Administrative Agent or such Lender (or assignee) is required to repay all or a portion of such refund to the relevant Governmental Authority, Borrower, upon the request of the Administrative Agent or such Lender (or assignee), shall repay the amount paid over to Borrower that is required to be repaid (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender (or assignee), as applicable, within ten (10) Business Days after receipt of written notice that the Administrative Agent or such Lender (or assignee) is required to repay such refund (or a portion thereof) to such Governmental Authority.  Nothing contained in this Section 2.15(h) shall require the Administrative Agent or any Lender (or assignee) to make available its Tax Returns or any other information which it deems confidential or privileged to Borrower or any other Person.  Notwithstanding anything to the contrary, in no event will the Administrative Agent or any Lender (or assignee) be required to pay any amount to Borrower the payment of which would place the Administrative Agent or such Lender (or assignee) in a less favorable net after-Tax position than the Administrative Agent or such Lender (or assignee) would have been in if the Indemnified Taxes or Other Taxes subject to indemnification and giving rise to such refund had not been deducted, withheld, or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been paid.

Section 2.16        Mitigation Obligations; Replacement of Lenders.

(a)           Mitigation of Obligations.  If any Lender requests compensation under Sections 2.12(a) or (b), or if Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce materially amounts payable pursuant to Section 2.12(a), 2.12(b) or 2.15, as the case may be, in the future, (ii) would not subject such Lender to any unreimbursed cost or expense, (iii) would not require such Lender to take any action inconsistent with legal or regulatory restrictions, and (iv) would not otherwise be disadvantageous to such Lender, whether from an economic, legal, regulatory or reputational standpoint or otherwise.  Borrower shall pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.  A certificate setting forth such costs and expenses submitted by such Lender to the Administrative Agent shall be conclusive and binding absent manifest error.

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(b)          Replacement of Lenders.  In the event (i) any Lender delivers a certificate requesting compensation pursuant to Section 2.12(a) or (b), (ii) any Lender delivers a notice described in Section 2.12(e), (iii) Borrower is required to pay any additional amount to any Lender or any Governmental Authority on account of any Lender pursuant to Section 2.15, (iv) any Lender fails to consent to any amendment, waiver or other modification of any Loan Document requested by Borrower that requires the consent of 100% of the Lenders or 100% of all affected Lenders and, which, in each case, has been consented to by the Lenders or affected Lenders holding the majority of the aggregate principal amount of Loans outstanding and/or unused commitments applicable thereto, as the case may be, or (v) any Lender or defaults in its obligations to make Loans or other extensions of credit hereunder, Borrower may, at its sole expense and effort (including with respect to the processing and recordation fee referred to in Section 10.04(b)), upon notice to such Lender and the Administrative Agent, require such Lender to transfer and assign, without recourse (in accordance with and subject to the restrictions contained in Section 10.04), all of its interests, rights and obligations under this Agreement to an Eligible Assignee (other than its existing rights to payments pursuant to Section 2.12(a) or (b) or 2.15) which shall assume such assigned obligations (which Eligible Assignee may be another Lender, if a Lender accepts such assignment); providedthat (t) with respect to clause (iv) above, so long as the other restrictions contained in Section 10.04 are satisfied, no action by or consent of any Lender failing to consent to any such amendment, waiver or other modification shall be necessary in connection with such transfer or assignment, which shall be immediately and automatically effective upon payment of the amount set forth in clause (z) below, (u) in the case of any such assignment resulting from a claim for compensation under Section 2.12(a) or (b) or payments required to be made pursuant to Section 2.15, such assignment will result in a reduction of such compensation or payment thereafter, (w) except in the case of clause (iv) above if the effect of such amendment, waiver or other modification of the applicable Loan Document would cure any Default or Event of Default then ongoing, no such Default or Event of Default shall have occurred and be continuing, (x) such assignment shall not conflict with any applicable Legal Requirement, (y) Borrower shall have received the prior written consent of the Required Lenders, which consent shall not unreasonably be withheld or delayed, and (z) Borrower or such assignee shall have paid to the affected Lender in immediately available funds an amount equal to the sum of the principal of and interest and any prepayment premium or penalty (if any) accrued to the date of such payment on the outstanding Loans of such Lender affected by such assignment plus all Fees and other amounts owing to or accrued for the account of such Lender hereunder (including any amounts under Sections 2.12 and 2.13);provided,further,that, if before any such transfer and assignment the circumstances or event that resulted in such Lender’s claim for compensation under Section 2.12(a) or (b) or notice under Section 2.12(e) or the amounts paid pursuant to Section 2.15, as the case may be, cease to cause such Lender to suffer increased costs or reductions in amounts received or receivable or reduction in return on capital, or cease to have the consequences specified in Section 2.12(e), or cease to result in amounts being payable under Section 2.15, as the case may be (including as a result of any action taken by such Lender pursuant to Section 2.16(a)), or if such Lender shall irrevocably waive its right to claim further compensation under Section 2.12(a) or (b) in respect of such circumstances or event or shall irrevocably withdraw its notice under Section 2.12(e) or shall irrevocably waive its right to further payments under Section 2.15 in respect of such circumstances or event or shall consent to the proposed amendment, waiver, consent or other modification, as the case may be, then such Lender shall not thereafter be required to make any such transfer and assignment hereunder.  Each Lender hereby grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an interest) to execute and deliver, on behalf of such Lender as assignor, any Assignment and Assumption necessary to effectuate any assignment of such Lender’s interests hereunder in the circumstances contemplated by this Section 2.16(b).

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(c)          Defaulting Lenders.  Anything contained herein to the contrary notwithstanding, in the event that any Lender becomes a Defaulting Lender, then during any Default Period (as defined below) with respect to such Defaulting Lender, such Defaulting Lender shall be deemed not to be a “Lender”, and the amount of such Defaulting Lender’s Commitments and Loans shall be excluded for purposes of voting, and the calculation of voting, on any matters (including the granting of any consents or waivers) with respect to any of the Loan Documents, except that the amount of such Defaulting Lender’s Commitments and Loans shall be included for purposes of voting, and the calculation of voting, on the matters set forth in Section 10.02(b)(i)-(x) and Section 10.02(b)(xi) (including the granting of any consents or waivers).

For purposes of this Agreement, (i) “Funding Default” means, with respect to any Defaulting Lender, the occurrence of any of the events set forth in the definition of “Defaulting Lender,” (ii) “Defaulted Loan” means the Loans of a Defaulting Lender; (iii) “Default Period” means, with respect to any Defaulting Lender, the period commencing on the date of the applicable Funding Default and ending on the earliest of the following dates:  (a) [reserved], (b) with respect to any Funding Default (other than any such Funding Default arising pursuant to clause (e) of the definition of “Defaulting Lender”), the date on which (1) the Default Excess with respect to such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting Lender of any Defaulted Loans of such Defaulting Lender or by the non-pro rata application of any voluntary or mandatory prepayments of the Loans in accordance with the terms hereof or any combination thereof) and (2) such Defaulting Lender shall have delivered to Borrower and the Administrative Agent a written reaffirmation of its intention to honor its obligations under this Agreement with respect to its Commitment(s), and (c) the date on which Borrower, the Administrative Agent and the Required Lenders waive all Funding Defaults of such Defaulting Lender in writing, and (iv) “Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender’s pro rata percentage of the aggregate outstanding principal amount of Loans of all Lenders (calculated as if all Defaulting Lenders (including such Defaulting Lender) had funded all of their respective Defaulted Loans) over the aggregate outstanding principal amount of Loans of such Defaulting Lender.

No amount of the Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in Section 2.16(c), performance by Borrower of its obligations under this Agreement and the other Loan Documents shall not be excused or otherwise modified, as a result of any Funding Default or the operation of Section 2.16(c).  The rights and remedies against a Defaulting Lender under Section 2.16(c) are in addition to other rights and remedies that Borrower may have against such Defaulting Lender with respect to any Funding Default and that the Administrative Agent or any Lender may have against such Defaulting Lender with respect to any Funding Default.

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Section 2.17        Increases of the Loan.

(a)          If and only if Borrower has not elected to pay any Designated Cash Pay PIK Interest, Borrower may, not more than five (5) times after the Closing Date, increase, at Borrower’s request to the Administrative Agent, the then effective aggregate principal amount of the Commitments; provided that:

(i)           the cumulative aggregate principal amount of all increases in the Commitments pursuant to this Section 2.17 shall not at any time exceed the Incremental Cap;

(ii)          the proceeds of such increases shall be used for working capital and general corporate purposes of Borrower and its Subsidiaries, including Investments (including acquisitions and Capital Expenditures) permitted hereunder;

(iii)        Borrower shall execute and deliver such agreements, instruments and documents and take such other actions as may be reasonably requested by the Administrative Agent in connection with such increases and at the time of any such proposed increase; no Default or Event of Default shall have occurred and be continuing or would occur immediately after giving effect to such increase and the application of proceeds therefrom, provided that with respect to any Incremental Loan the proceeds of which are used to finance a Limited Condition Transaction, it shall only be required that (x) to the extent required by the Lenders of such Incremental Loan, no Default or Event of Default shall have occurred on the date that definitive documents relating to such Limited Condition Transaction are entered into, immediately prior to and immediately after giving effect to the execution and delivery thereof, and (y) to the extent required by the Lenders of such Incremental Loan, no Default or Event of Default shall have occurred immediately prior to or immediately after giving effect to the incurrence of such Incremental Loans;

(iv)         Borrower shall be in compliance, on a pro forma basis, with each of the financial covenants specified in Section 6.10, on the date of such increase and as of the last day of the most recently ended fiscal quarter after giving effect to such increase (assuming, for purposes of Section 6.10, that the maximum Total Net Leverage Ratio permitted in any Test Period pursuant to Section 6.10 is 0.25 to 1.00 below the maximum Total Net Leverage Ratio set forth in Section 6.10 for such Test Period);

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(v)          the Incremental Loans shall have a maturity date no earlier than the Latest Maturity Date and shall have a weighted average life to maturity no shorter than the Loans made (or deemed made) on the Closing Date;

(vi)        if the Effective Yield applicable to the Incremental Loans made pursuant to this Section 2.17 exceed the Effective Yield applicable to the Loans made (or deemed made) on the Closing Date by more than 50 basis points, then the interest rates set forth in Section 2.06 shall increase by the Yield Differential; provided that it being understood that any increase to the Effective Yield to any such Loan pursuant to this clause (vii) due to the application of any LIBOR or ABR floors will be effected solely through any increase in such floor; and

(vii)        the terms and conditions with respect to the Incremental Loans that are not consistent with the Loans made (or deemed made) on the Closing Date (except as otherwise set forth in this Section 2.17) shall be reasonably satisfactory to the Administrative Agent.

(b)          Any request under this Section 2.17 shall be submitted by Borrower in writing to the Administrative Agent (which shall promptly forward copies to the Lenders).  Borrower may also specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the principal amount of their Commitments, which fees may be variable based upon the amount by which any such Lender is willing to increase the principal amount of its Commitment.  No Lender shall have any obligation, express or implied, to offer to increase the aggregate principal amount of its Commitment or to make any Incremental Loans.  Only the consent of each Increasing Lender shall be required for an increase in the aggregate principal amount of the Commitments pursuant to this Section 2.17.  No Lender which declines to increase the principal amount of its Commitment may be replaced with respect to its existing Commitment as a result thereof without such Lender’s consent.

(c)          Each Increasing Lender shall as soon as reasonably practicable specify in writing the amount of the proposed increase of the Commitments that it is willing to assume (provided that any Lender not so responding within five (5) Business Days (or such shorter period as may be specified by the Administrative Agent) shall be deemed to have declined such a request).  Borrower may accept some or all of the offered amounts or designate new lenders that are reasonably acceptable to the Administrative Agent as additional Lenders hereunder in accordance with this Section 2.17 (each such new lender being a “New Lender”), which New Lenders may assume all or a portion of the increase in the aggregate principal amount of the applicable Commitments.  The Administrative Agent (acting at the direction of the Required Lenders), in consultation with Borrower, shall have discretion jointly to adjust the allocation of the increased aggregate principal amount of the Commitments among Increasing Lenders and New Lenders.

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(d)          Subject to the foregoing, any increase requested by Borrower shall be effective upon (A) delivery to the Administrative Agent of each of the following documents: (i) an originally executed copy of a Joinder Agreement signed by a duly authorized officer of each New Lender; (ii) a notice to the Increasing Lenders and New Lenders, in form and substance reasonably acceptable to the Administrative Agent, signed by a Financial Officer of Borrower; (iii) an Officers’ Certificate of Borrower, in form and substance reasonably acceptable to the Administrative Agent certifying to, among other things, that any increase in the Commitments pursuant to this Section 2.17 and the making of the Loans under this Section 2.17 is not in violation of the Facility; (iv) to the extent requested by any New Lender or Increasing Lender, executed Term Notes issued by Borrower in accordance with Section 2.04(e); (v) an amendment (an “Incremental Loan Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Borrower, each Increasing Lender (if any), each New Lender (if any) and the Administrative Agent; and (vi) any other certificates or documents or legal opinions that the Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Administrative Agent, and (B) satisfaction on the effective date of the Incremental Loan Amendment of (x) each of the conditions specified in Section 4.02 (it being understood that all references to “the date of such Credit Event” or similar language in Section 4.02 shall be deemed to refer to the effective date of the Incremental Loan Amendment), and (y) such other conditions as the parties thereto shall agree; provided that, with respect to any Incremental Loan the proceeds of which are used to finance a Limited Condition Transaction, it shall only be required under this Section 2.17(d)(B) that (x) to the extent required by the Lenders of such Incremental Loan, no Default or Event of Default shall have occurred on the date that definitive documents relating to such Limited Condition Transaction are entered into, immediately prior to and immediately after giving effect to the execution and delivery thereof, and (y) to the extent required by the Lenders of such Incremental Loan, no Default or Event of Default shall have occurred immediately prior to or immediately after giving effect to the incurrence of such Incremental Loans, and the only representations and warranties which shall be a condition to the availability of the Incremental Loans shall be the Specified Representations and the Specified Purchase Agreement Representations (in each case, pursuant to the terms thereof) as a result of the breach of one or more of such representations in such acquisition agreement (it being understood and agreed that, to the extent any of the Specified Representations are qualified or subject to “material adverse effect” (or equivalent term), for purposes of the making of such Specified Representations as of the closing date of such Limited Condition Transaction, the definition of “material adverse effect” (or equivalent term), shall be qualified by the same exceptions and qualifications that apply to the definition of “closing date material adverse effect” (or equivalent term defined in the acquisition agreement in connection with such Limited Condition Transaction)).

(e)          Notwithstanding anything to the contrary in Section 10.02, the Administrative Agent is expressly permitted, without the consent of the other Lenders, to amend the Loan Documents to the extent necessary or appropriate in the opinion of the Administrative Agent to give effect to any increases pursuant to this Section 2.17.

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Section 2.18         Amend and Extend Transactions.

(a)        At any time after the Closing Date, Borrower and any Lender (any such Lender, an “Extending Lender”) may agree, by notice to the Administrative Agent for further distribution to Lenders (each such notice, an “Extension Notice”), to extend (an “Extension”) the maturity date of such Lender’s Loans of a Class (which term, for purposes of this provision, shall also include any Loans outstanding hereunder pursuant to a previous amend and extend transaction pursuant to the terms of this Section 2.18 or any Class of Incremental Loans) (the “Existing Loan Class”) to the extended maturity date specified in such Extension Notice and Extension Amendment (each tranche Loans so extended, in each case as well as the original Loans not so extended, being deemed a separate Class; any Extended Loans shall constitute a separate Class of Loans from the Class of Loans from which they were converted; any Class of Loans the maturity of which shall have been extended pursuant to this Section 2.18, “Extended Loans”); provided that (i) Borrower shall have offered to all Lenders under the applicable Facility that is the subject of the proposed Extension the opportunity to participate in such Extension on a pro rata basis and on the same terms and conditions to each such Lender (each such offer, an “Extension Offer”), (ii) subject to clauses (iv) and (v), the Extended Loans shall have substantially similar terms as the Class or Class of Loans that was the subject of the Extension Notice; provided that the Extension Offer and/or Extension Amendment may provide for other covenants and terms that apply to any period after the Final Maturity Date then in effect; provided, further, that (x) no Extended Terms Loans shall benefit from any guarantee or any security interest not otherwise also guaranteeing or securing, as the case may be, the other Loans and (y) the Extended Loans shall not affect the validity and/or enforceability of any guaranty of, and/or security interest granted in respect of, any Existing Loan Class, (iii) any Extended Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments or commitment reductions hereunder, as specified in the applicable Extension Offer, (iv) the interest rates, rate floors, fees, original issue discounts, premiums, final maturity date, and scheduled amortization (subject to the limitations set forth in clause (v) of this Section 2.18(a)) applicable to any Extended Loans shall be determined by Borrower and the Extending Lenders, (v) before the Final Maturity Date then in effect, the amortization of any Extended Loans shall not exceed equal quarterly installments in an aggregate annual amount equal to 1% of the original principal amount of the Extended Loans and (vi)  all documentation in respect of such Extension Offer (including any Extension Notice any amendment to this Agreement implementing the terms of such Extension Offer (each such amendment, an “Extension Amendment”)) shall be consistent with the foregoing.  In connection with any such Extension, Borrower and the Administrative Agent, with the approval of the Extending Lenders of the applicable Extension Series, may effect such amendments (including any Extension Amendment) to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent (acting at the direction of the Required Lenders) and Borrower, to implement the terms of any such Extension Offer, including any amendments necessary to establish new Classes, tranches or sub-tranches in respect of the Extended Loans and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent (acting at the direction of the Required Lenders) and Borrower in connection with the establishment of such new tranches or sub-tranches (including to preserve the pro rata treatment of the extended and non-extended tranches), in each case on terms not inconsistent with this Section 2.18.

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(b)         Notwithstanding anything to the contrary contained in this Agreement, on any date on which any Existing Loan Class is converted to extend the related scheduled maturity date(s) in accordance with Section 2.18(a) (an “Extension Date”), the aggregate principal amount of the existing Loans shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Loans so converted by such Lender on such date, and the Extended Loans shall be established as a separate Class of Loans (together with any other Extended Loans so established on such date).  If the aggregate principal amount of Loans (calculated on the face amount thereof) in respect of which Extending Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of  Loans offered to be extended by Borrower pursuant to such Extension Offer, then the Loans of such Extending Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Extending Lenders have accepted such Extension Offer.

(c)          With respect to all Extensions consummated by Borrower pursuant to this Section 2.18, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.10 and (ii) any Extension Offer is required to be in a minimum amount of $20,000,000. Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in Borrower’s sole discretion and may be waived by Borrower) of Loans of any or all applicable tranches accept the applicable Extension Offer.

(d)           In connection with any Extension, Borrower shall provide the Administrative Agent at least ten (10) Business Days’ (or such shorter period as may be agreed by the Required Lenders) prior written notice thereof, and shall agree to such procedures, if any, as may be established by, or acceptable to, the Administrative Agent (acting at the direction of the Required Lenders) or the Required Lenders, in each case acting reasonably, to accomplish the purposes of this Section 2.18.

(e)          In connection with any Extension Amendment, Borrower shall deliver (i) an opinion of counsel reasonably acceptable to the Administrative Agent  (acting at the direction of the Required Lenders) or the Required Lenders as to the enforceability of such Extension Amendment and the Loan Documents as amended thereby, that such Extension Amendment, including the Extended Loans; provided for therein, does not conflict with or violate the terms and provisions of this Agreement, does not affect the validity or perfection of the Collateral Agent’s Lien on the Collateral, and such other customary opinions reasonably requested by the Administrative Agent (acting at the direction of the Required Lenders) or the Required Lenders, (ii) customary reaffirmations and/or such amendments to the Security Documents as may be reasonably requested by the Administrative Agent (acting at the direction of the Required Lenders) or the Required Lenders in order to ensure that such Extended Loans are provided with the benefit of the applicable Loan Documents and (iii) board resolutions, secretary’s certificates, officer’s certificates and other closing certificates and documentation to the extent reasonably requested by the Administrative Agent (acting at the direction of the Required Lenders) or the Require Lenders.

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(f)           In the event that the Required Lenders determine in their sole discretion that the allocation of Extended Loans of a given Extension Series to a given Lender was incorrectly determined as a result of manifest administrative error, then the Administrative Agent, Borrower and such affected Lender may (and hereby are authorized to), in their sole discretion and without the consent of any other Lender, enter into an amendment to this Agreement and the other Loan Documents (each, a “Corrective Extension Amendment”) within 15 days following the effective date of the applicable Extension Amendment, as the case may be, which Corrective Extension Amendment shall (i) provide for the conversion and extension of  Loans under the Existing Loan Class in such amount as is required to cause such Lender to hold Extended Loans of the applicable Extension Series into which such other Loans were initially converted in the amount such Lender would have held had such administrative error not occurred and had such Lender received the minimum allocation of the applicable Extended Loans to which it was entitled under the terms of such Extension Amendment, in the absence of such error, (ii) be subject to the satisfaction of such conditions as the Administrative Agent, Borrower and such Lender may agree (including conditions of the type required to be satisfied for the effectiveness of an Extension Amendment described in Section 2.18(a)), and (iii) effect such other amendments of the type (with appropriate reference and nomenclature changes) described in the penultimate sentence of Section 2.18(a).

(g)           This Section 2.18 shall supersede any provisions in Section 10.02 to the contrary. For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders; provided that no such amendment shall require any Lender to provide any Extended Loans without such Lender’s consent.

Section 2.19        Refinancing Amendments.

(a)          At any time after the Closing Date, Borrower may obtain, from any Lender or any New Lender, Other Loans to refinance all or any portion of the applicable Class or Classes of Loans then outstanding under this Agreement which will be made pursuant to Other Loan Commitments, in the case of Other Loans pursuant to a Refinancing Amendment; provided that such Other Loans: (i) shall rank equal in priority in right of payment and of security with the other Loans and Commitments hereunder; (ii)(A) will have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment or redemption terms and premiums as may be agreed by Borrower and the Lenders thereof and/or (B) additional fees and/or premiums may be payable to the Lenders providing such Other Loans in addition to any of the items contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Refinancing Amendment; (iii) may have optional prepayment terms (including call protection and prepayment terms and premiums as may be agreed between Borrower and the Lenders thereof); provided that such terms shall require that any optional prepayment shall be applied on a pro rata basis to all Loans under this Agreement (or less than pro rata basis in respect of such Other Loans); (iv) (A) will have a final maturity date no earlier than the Loans being refinanced (except by virtue of amortization or prepayment of the Loans prior to the time of such refinancing) and (B) will have a weighted average life to maturity no shorter than that of the Loans being refinanced; (v) shall not exceed the aggregate principal amount of Indebtedness being refinanced; and (vi) will have such other terms and conditions (other than as provided in foregoing clauses (ii) through (iv)) that are identical in all material respects to, or (taken as a whole) are no more favorable to the lenders or holders providing such Other Commitments and Other Loans than those applicable to the Loans being refinanced; provided that the terms and conditions applicable to such Other Commitments and Other Loans may provide for any additional or different financial or other covenants or other provisions that are agreed between Borrower and the Lenders thereof and applicable only during periods after the Final Maturity Date in respect of the Class of Loans being refinanced that is in effect on the date such Other Commitments and Other Loans are incurred or obtained.  Any Other Loans may participate on a pro rata basis or on a less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments under Section 2.10(g)(i), as specified in the applicable Refinancing Amendment.  In connection with any Refinancing Amendment, Borrower shall, if reasonably requested by the Administrative Agent (acting at the direction of the Required Lenders) or the Required Lenders, deliver customary reaffirmation agreements and/or such amendments to the Security Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Other Loans are provided with the benefit of the applicable Loan Documents.

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(b)         Each Class of Other Commitments and Other Loans incurred under this Section 2.18 shall be in an aggregate principal amount that is not less than $20,000,000.  The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment.  Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Other Commitments and Other Loans incurred pursuant thereto (including any amendments necessary to treat the Other Loans and/or Other Commitments as Loans and Commitments).  Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Borrower, to effect the provisions of this Section 2.18.

This Section 2.18 shall supersede any provisions in Sections 2.14 or 10.02 to the contrary.  For the avoidance of doubt, any of the provisions of this Section 2.18 may be amended with the consent of the Required Lenders.  For the avoidance of doubt, no Refinancing Amendment shall effect any amendments that would require the consent of each affected Lender or all Lenders pursuant to Section 10.02(b), unless each such Lender has, or all such Lenders have, as the case may be, given its or their consent to such amendment.  No Lender shall be under any obligation to provide any Other Commitment unless such Lender executes a Refinancing Amendment.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

Each Loan Party represents and warrants to the Administrative Agent, the Collateral Agent and each of the Lenders (with references in this Article III to the Companies being references thereto after giving effect to the Transactions unless otherwise expressly stated) on the Closing Date:

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Section 3.01        Organization; Powers; Regulatory Licenses.

(a)        Each Company (i) is duly incorporated or organized and validly existing and is in good standing under the laws of the jurisdiction of its incorporation or organization, (ii) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals (including franchises, ordinances and other agreements granting access to public rights of way, issued or granted to any Company by a state or federal agency or commission or other federal, state or local or foreign regulatory bodies, in each case, regulating competition and telecommunications businesses) (collectively, the “Regulatory Licenses”) to carry on its business as now conducted and as proposed to be conducted and (iii) is qualified, licensed and in good standing (to the extent such concept is applicable in the applicable jurisdiction) to do business in every jurisdiction where such qualification is required, except in such jurisdictions where the failure to so qualify, be licensed or be in good standing could not reasonably be expected to result in a Material Adverse Effect.

(b)          Each Regulatory License is valid and in full force and effect and has not been, or will not have been, suspended, revoked, cancelled, restricted, terminated, not renewed or adversely modified, except to the extent any failure to be valid or in full force and effect or any suspension, revocation, cancellation, restriction, termination, nonrenewal or modification has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  No Regulatory License is subject to (i) any conditions or requirements that have not been imposed generally upon licenses in the same service, unless such conditions or requirements would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, or (ii) any pending regulatory proceeding (other than those affecting the communications industry generally) or judicial review before a Governmental Authority, unless such pending regulatory proceedings or judicial review would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.  No Loan Party has knowledge of any event, condition or circumstance that would preclude any Regulatory License from being renewed in the ordinary course (to the extent that such Regulatory License is renewable by its terms), except where the failure to be renewed has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(c)          The licensee of each Regulatory License is in compliance with each Regulatory License and has fulfilled and performed, or will fulfill or perform, all of its obligations with respect thereto in a timely manner, including with respect to the filing of all reports, notifications and applications required by the Communications Act or the rules, regulations, policies, instructions and orders of the FCC or any PUC, and the payment of all regulatory fees and contributions, except (i) for exemptions, waivers or similar concessions or allowances and (ii) where such failure to be in compliance or to fulfill or perform its obligations or pay such fees or contributions has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

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(d)          One or more Loan Parties owns, directly or indirectly through one or more Wholly Owned Subsidiaries, all of the Equity Interests in, and Controls, all of the voting power and decision-making authority of, each licensee of the Regulatory Licenses, except for any Regulatory License the termination of which could not reasonably be expected to result in a Material Adverse Effect, and each such licensee is a Subsidiary.

Section 3.02        Authorization; Enforceability.  Subject to the entry of and the terms of the Confirmation Order, the Transactions to be entered into by each Loan Party are within such Loan Party’s organizational powers and have been duly authorized by all necessary corporate or other organizational action on the part of each such Loan Party.  Subject to the entry of and terms of the Confirmation Order, this Agreement has been duly executed and delivered by each Loan Party and constitutes, and each other Loan Document to which any Loan Party is to be a party, when executed and delivered by such Loan Party, will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally, regardless of whether considered in a proceeding in equity or at law.

Section 3.03        No Conflicts; No Default.  Subject to the entry of and terms of the Confirmation Order and except to the extent excused as a result of the Chapter 11 Cases, the Transactions (a) do not require any consent, exemption, authorization or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) filings necessary to perfect or maintain the perfection or priority of the Liens created by the Security Documents and (iii) consents, approvals, exemptions, authorizations, registrations, filings, permits or actions the failure of which to obtain or perform could not reasonably be expected to result in a Material Adverse Effect, (b) will not violate the Organizational Documents of any Company, (c) will not violate or result in a default or require any consent or approval under (x) any indenture, instrument, agreement, or other document binding upon any Company or its property or to which any Company or its property is subject, or give rise to a right thereunder to require any payment to be made by any Company, except for violations, defaults or the creation of such rights that could not reasonably be expected to result in a Material Adverse Effect or (y) any Organizational Document (other than such as have been obtained and are in full force and effect), (d) will not violate any Legal Requirement in any material respect, and (e) will not result in the creation or imposition of any Lien on any property of any Company, except Liens created by the Security Documents and Permitted Liens.  No Default or Event of Default has occurred and is continuing.

Section 3.04        Financial Statements.  Borrower has heretofore delivered to the Lenders the consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Borrower and its Subsidiaries as of and for the fiscal years ended December 31, 2017, December 31, 2018, and December 31, 2019, audited by and accompanied by (i) in the case of such financial statements for the fiscal year ended December 31, 2017, the opinion of PricewaterhouseCoopers LLP, independent public accountants and (ii) in the case of such financial statements for the fiscal years ended December 31, 2018 and December 31, 2019, the opinion of BDO USA, LLP, independent public accountants.  Such financial statements and all financial statements delivered pursuant to Sections 5.01(a) and (b) have been prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) consistently applied throughout the applicable period covered, respectively, thereby and present fairly in all material respects the financial condition and results of operations and, if applicable, cash flows of the applicable Companies as of the dates and for the periods to which they relate (subject to normal year-end audit adjustments and the absence of footnotes).

Section 3.05       Properties.  Each Company valid leasehold interests in, all its Property material to its business, free and clear of all Liens and irregularities, deficiencies and defects in title except for Permitted Liens and minor irregularities, deficiencies and defects in title that, individually or in the aggregate, do not, and could not reasonably be expected to, interfere with its ability to conduct its business as currently conducted or to utilize such Property for its intended purpose.  There are no Material Adverse Lease Events where a landlord has exercised remedies as a result of an event of default resulting from any Company’s bankruptcy on or prior to the Closing Date (other than in connection with the Chapter 11 cases.

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Section 3.06        Intellectual Property.

(a)          Each Company owns or is licensed to use, free and clear of all Liens (other than Permitted Liens), all patents and patent applications, trademarks, trade names, service marks, copyrights, domain names and applications for registration thereof, and technology, trade secrets, proprietary information, inventions, know-how and processes, in each case necessary for the conduct of its business as currently conducted and proposed to be conducted (the “Intellectual Property”), except for those the failure to own or license which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

(b)          Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, no claim has been asserted or is pending by any Person challenging or restricting the use of any such Intellectual Property or challenging the ownership, validity, registerability or enforceability of any such Intellectual Property, nor does any Loan Party know of any valid basis for any such claim.  The operation of each Company’s business as currently conducted and proposed to be conducted and the use of such Intellectual Property by each Company does not conflict with, infringe, misappropriate, dilute, misuse or otherwise violate the rights of any Person, except for such claims, infringements and violations which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.  Except pursuant to licenses and other user agreements entered into by each Company in the ordinary course of business and as otherwise could not reasonably be expected to result in a Material Adverse Effect, no Company has done anything to authorize or enable any other Person to use any such Intellectual Property.  Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, each Company has taken commercially reasonable actions to protect the secrecy, confidentiality and value of all trade secrets used in such Company’s business.

(c)          Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect:  (i) to the knowledge of any Loan Party based on reasonable investigations, there is no violation by others of any right of any Company with respect to any Intellectual Property, (ii) to the knowledge of any Loan Party based on reasonable investigations, no Company is infringing upon or misappropriating, diluting, misusing or otherwise violating any copyright, patent, trademark, trade secret or other Intellectual Property right of any other Person, (iii) no Company is in breach of, or in default under, any license of Intellectual Property by any other Person, to such Company, and (iv) no proceedings have been instituted or are pending against any Company or, to the knowledge of any Loan Party, threatened, and no claim against any Company has been received by any Company, alleging any such infringement or misappropriation of the Intellectual Property of any other Person.

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(d)         Neither the execution, delivery or performance of this Agreement and the other Loan Documents, nor the consummation of the Transactions and the other transactions contemplated hereby and thereby, will alter, impair or otherwise affect or require the consent, approval or other authorization of any other Person in respect of any right of any Company in any Intellectual Property, except to the extent that such alteration, impairment, effect, consent, approval or other authorization, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.

(e)          Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, no Company is subject to any settlement, covenant not to sue or other instrument, agreement or other document, or any outstanding Order.

Section 3.07        Equity Interests and Subsidiaries.

(a)         Schedule 3.07(a) attached hereto sets forth a list of (i) Borrower and each Subsidiary of Borrower and its jurisdiction of incorporation or organization as of the Closing Date and (ii) the number of each class of its Equity Interests authorized, and the number outstanding, on the Closing Date and the number of Equity Interests covered by all outstanding options, warrants, rights of conversion or purchase and similar rights on the Closing Date.  All Equity Interests of each Company are duly and validly issued and are fully paid and non-assessable.  Each Loan Party is the record and beneficial owner of, and has good and marketable title to, the Equity Interests pledged by (or purporting to be pledged by) it under the Security Documents, free of any and all Liens (other than Permitted Liens).  As of the Closing Date, there are no outstanding warrants, options or other rights (including derivatives) to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or Property that is convertible into, or that requires the issuance or sale of, any such Equity Interests of any Subsidiary of Borrower (or any economic or voting interests therein).

(b)          An accurate organizational chart, showing the ownership structure of Borrower and each Subsidiary as of the Closing Date, is set forth on Schedule 3.07(b).

Section 3.08        Litigation; Compliance with Legal Requirements.  Unless stayed by the Chapter 11 Cases, there are no actions, suits, claims, disputes, proceedings or investigations at law or in equity by or before any Governmental Authority, including the FCC and any PUC, now pending or, to the knowledge of any Loan Party, threatened against or affecting any Company or any business, Property or rights of any Company (a) that purport to affect or involve any Loan Document or any of the Transactions, the ability of any Company to perform its obligations under any Loan Document or the ability of any Company to consummate any of the Transactions or (b) that have resulted in or that could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

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Section 3.09        Agreements.  No Company is a party to any agreement or instrument or subject to any corporate or other constitutional restriction, or any restriction under its Organizational Documents that has resulted or could reasonably be expected to result in a Material Adverse Effect.  As of the Closing Date, Schedule 3.09 attached hereto accurately and completely lists all Material Agreements to which any Company is a party which are in effect on the date hereof and Borrower has made available for review by the Administrative Agent and the Specified Lender Advisors complete and correct copies of all such Material Agreements, including any amendments, supplements or modifications with respect thereto, and, except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, all such agreements are in full force and effect.

Section 3.10        Federal Reserve Regulations.

(a)          No Company is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing, buying or carrying Margin Stock.

(b)          No part of the proceeds of any Credit Event will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a violation of Regulation U or X of the Board.  The pledge of the Securities Collateral pursuant to the Security Agreement does not violate such regulations.

Section 3.11         Investment Company Act, etc.

  No Company is (a) an “investment company” or a company “controlled” by an “investment company,” as defined in, or subject to regulation under, or required to be registered pursuant to, the Investment Company Act of 1940, as amended, or (b) subject to regulation under any Legal Requirement (other than Regulation X) that limits its ability to incur, create, assume or permit to exist Indebtedness under the Loan Documents or grant any Contingent Obligation in respect of such Indebtedness.

Section 3.12        [Reserved].

Section 3.13        Taxes.  Each Company has (a) timely filed or caused to be timely filed all material federal, state, local and foreign Tax Returns and other materials required to have been filed by it and all such Tax Returns are true and correct in all material respects and (b) duly and timely paid or caused to be duly and timely paid all material Taxes (whether or not shown on any Tax Return) due and payable by it and all assessments received by it, except Taxes that are being contested in good faith by appropriate proceedings and for which such Company has set aside on its books adequate reserves in accordance with GAAP.  Each Company has made adequate provision in accordance with GAAP for all Taxes not yet due and payable.  No Company has knowledge (or could reasonably have knowledge upon due inquiry) of any proposed or pending tax assessments, deficiencies, audits or other proceedings and no proposed or pending material tax assessments, deficiencies, audits or other proceedings have resulted, or could, individually or in the aggregate, reasonably be expected to result, in a Material Adverse Effect.  No Company has ever “participated” in a “reportable transaction” within the meaning of Treasury Regulation Section 1.6011-4.  No Company is party to any tax sharing or similar agreement.

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Section 3.14        No Material Misstatements.  None of the reports, financial statements, certificates, borrowing requests or other written information (other than projections, forward-looking information and information of a general economic or industry-specific nature) furnished by or on behalf of Borrower to the Administrative Agent or any Lender in connection with the negotiation of any Loan Document or delivered pursuant thereto (as modified or supplemented by other information so furnished), when taken as a whole, contained or contains any material misstatement of fact or omitted or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading in any material respect as of the date such information is dated or certified; providedthat, with respect to projected financial information, Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time (it being understood that any such projected financial information is not to be viewed as fact, is not a guarantee of financial performance and is subject to uncertainties and contingencies, many of which are beyond any Company’s control, that no assurance can be given that any particular projections will be realized, that actual results may differ and that such differences may be material).

Section 3.15        Labor Matters.  There are no strikes, lockouts or slowdowns against any Company pending or, to the best of the knowledge of the Loan Parties, threatened that have resulted in, or could reasonably be expected to result in, a Material Adverse Effect.  The hours worked by and payments made to employees of any Company have not been in violation of the Fair Labor Standards Act of 1938, as amended, or any other applicable Legal Requirement dealing with such matters in any manner that has resulted in, or could reasonably be expected to result in, a Material Adverse Effect.  All payments due from any Company, or for which any claim may be made against any Company, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of such Company except to the extent that the failure to do so has not resulted in, and could not reasonably be expected to result in, a Material Adverse Effect.  Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, the consummation of the Transactions will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which any Company is bound.

Section 3.16        Solvency. On the Closing Date, after giving effect to the Exit Transactions, (a) the fair value of the properties of the Loan Parties, taken as whole, will exceed their debts and liabilities, subordinated, contingent or otherwise, taken as a whole, (b) the present fair saleable value of the Property of the Loan Parties, taken as a whole, will be greater than the amount that will be required to pay the probable liability of their debts and other liabilities, subordinated, contingent or otherwise, taken as a whole, as such debts and other liabilities become absolute and matured, (c) the Loan Parties, taken as a whole, will be able to pay their debts and liabilities, subordinated, contingent or otherwise, taken as a whole, as such debts and liabilities become absolute and matured; and (d) the Loan Parties, taken as a whole, will not have unreasonably small capital with which to conduct their business in which they are engaged as such businesses are now conducted and are proposed, contemplated or about to be conducted following the Closing Date.

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Section 3.17        Employee Benefit Plans.

(a)         Each Company and each of its ERISA Affiliates is in material compliance with all applicable Legal Requirements, including all applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder, with respect to all Employee Benefit Plans except to the extent that the failure to do so has not resulted in, and could not reasonably be expected to result in, a Material Adverse Effect.  Each Employee Benefit Plan complies in all material respects, and is operated and maintained in compliance in all material respects, with all applicable Legal Requirements, including all applicable provisions of ERISA and the Code and the regulations and published interpretations thereunder except to the extent that the failure to do so has not resulted in, and could not reasonably be expected to result in, a Material Adverse Effect.  Each Employee Benefit Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service for all required amendments and nothing has occurred which would prevent, or cause the loss of, such qualification.

(b)          No ERISA Event (i) has occurred or (ii) is expected to occur, and with respect to subsection (ii), to which any Company or any of its ERISA Affiliates is reasonably expected to incur any material liability.  No Pension Plan has any Unfunded Pension Liability.  Within the last six years, no Pension Plan has been terminated, whether or not in a “standard termination” as that term is used in Section 4041 of ERISA under which any Company or any of its ERISA Affiliates has any liability which has not been satisfied in full, nor has any Pension Plan (determined at any time within the last six years) with an Unfunded Pension Liability been transferred outside of the “controlled group” (within the meaning of Section 4001(a)(14) of ERISA) of any Company or any of its ERISA Affiliates.  Using actuarial assumptions and computation methods consistent with subpart I of subtitle E of Title IV of ERISA, the aggregate liabilities of any Company or any of its ERISA Affiliates to all Multiemployer Plans in the event of a complete withdrawal therefrom, as of the close of the most recent fiscal year of each such Multiemployer Plan, have not resulted in, and could not reasonably be expected to result in, a Material Adverse Effect.

(c)          With respect to Canadian Pension Plans, in each case except to the extent that the failure to do so has not resulted in, and could not reasonably be expected to result in, a Material Adverse Effect:  (i) as of the Closing Date, no steps have been taken to terminate any Canadian Pension Plan (wholly or in part) which could result in any Company being required to make an additional contribution to the Canadian Pension Plan; (ii) no Canadian Pension Plan is a “registered pension plan”, as that term is defined in subsection 248(1) of the Income Tax Act (Canada), which is or was sponsored, administered or contributed to, or required to be contributed to by, any Loan Party or under which any Loan Party has any actual or potential liability, and which contains a “defined benefit provision”, as defined in subsection 147.1(1) of the Income Tax Act (Canada), (iii) all contributions (including employee contributions made by authorized payroll deductions or other withholdings) required to be made in accordance with all applicable Legal Requirements and the terms of each Canadian Pension Plan have been made in accordance with all applicable Legal Requirements and the terms of each Canadian Pension Plan, in each case in all material respects; and (iv) each Canadian Pension Plan is maintained in all material respects in compliance with all applicable Legal Requirements.

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(d)         To the extent applicable, each Foreign Plan has been established, administered and maintained in substantial compliance with its terms and with the requirements of all Legal Requirements and has been maintained, where required, in good standing with applicable regulatory authorities, in each case in all material respects except to the extent that the failure to do so has not resulted in, and could not reasonably be expected to result in, a Material Adverse Effect.  No Company has incurred any material obligation in connection with the termination of or withdrawal from any Foreign Plan.  The present value of the accrued benefit liabilities (whether or not vested) under each Foreign Plan which is funded, determined as of the end of the most recently ended, fiscal year of the respective Company on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the Property of such Foreign Plan, and for each Foreign Plan which is not funded, the obligations of such Foreign Plan are properly accrued.  All contributions or payments which are due with respect to each Foreign Plan have been made in full, in each case in all material respects.  All amounts payable under any Foreign Plan are properly reflected on the financial statements of the applicable Company.

Section 3.18       Environmental Matters.  Except for the matters described on Schedule 3.18 and except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, neither Borrower nor any of its Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii) has received notice of any Environmental Claim with respect to any Environmental Liability or (iv) knows of any basis for any Environmental Liability.

Section 3.19        Insurance.  Each Company has insurance in such amounts and covering such risks and liabilities as are customary for companies of a similar size engaged in similar businesses in similar locations.  All insurance required to be maintained by the Companies under the immediately preceding sentence is in full force and effect, all premiums in respect thereof have been duly paid.  Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, all Real Property of each Company, and the use, occupancy and operation thereof, comply in all respects with all Insurance Requirements.

Section 3.20        Mortgages.  Subject to the entry of the Confirmation Order, each Mortgage is effective to create, in favor of the Collateral Agent, for its benefit and the benefit of the Secured Parties, legal, valid and enforceable first priority Liens on, and security interests in, all of the Loan Parties’ right, title and interest in and to the Material Properties thereunder and the proceeds thereof (excluding any Excluded Property), subject only to Permitted Liens, and when the Mortgages are filed in accordance with the provisions of Sections 5.11, 5.12 and 5.18, as applicable, when such Mortgage is filed in the offices specified in the local counsel opinion delivered with respect thereto in accordance with the provisions of Sections 5.11, 5.12 and 5.18, as applicable, the Mortgages shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the Loan Parties in the Material Properties and the proceeds thereof (excluding any Excluded Property), in each case prior and superior in right to any other Person, other than Permitted Liens.

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Section 3.21        Anti-Terrorism Law; Foreign Corrupt Practices Act.

(a)          No Company and, to the knowledge of each Company, none of its Affiliates is in violation of, or shall use any proceeds of the Loans in violation of, any Legal Requirements relating to (i) terrorism or money laundering (“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive Order”), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (the “Patriot Act”), the Criminal Code (Canada) and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada) and, in each case, the regulations promulgated thereunder (collectively, the “Canadian Anti-Terrorism Laws”), and (ii) OFAC and Canadian Sanctions.

(b)          No Company and to the knowledge of each Company, no Affiliate, representative or agent of any Company, is (i) currently the subject of, controlled by any entity or Person that is the subject of, or acting on behalf of any entity or Person that is the subject of, any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or to any Canadian economic sanctions, including under the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada) and the Criminal Code (Canada) and, in each case, the regulations promulgated thereunder (“Canadian Sanctions”), (ii) is located in, or has any assets located in, any Sanctioned Country, or (iii) is under administrative, civil or criminal investigation for an alleged violation of, or has received notice from or made a voluntary disclosure to any governmental entity regarding a possible violation of, any Anti-Terrorism Law, any Canadian Anti-Terrorism Law or any Sanctions Laws, by a governmental authority that enforces such laws; and Borrower will not directly or indirectly use the proceeds of the Loans or otherwise make available such proceeds to any Person or entity, for the purpose of financing the activities of any Person or entity currently the subject of any U.S. sanctions administered by OFAC or any Canadian Sanctions.

(c)          No Company and, to the knowledge of each Company, no Affiliate or agent of any Company, (i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Person described in clause (b) above, (ii) deals in, or otherwise engages in any transaction relating to, any Property or interests in Property blocked or frozen pursuant to the Executive Order or any Canadian Sanctions, or otherwise directly or indirectly derives revenues from investments in, or transactions with, any Person described in clause (b) above or (iii) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, any Canadian Anti-Terrorism Law, any Canadian Anti-Terrorism Law or any Sanctions Law.

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(d)        Each Company and each of their respective Subsidiaries has implemented and maintains in effect policies and procedures designed to ensure compliance by each Company and its respective Subsidiaries and each of their respective directors, officers, employees, agents and Affiliates with all Anti-Terrorism Laws, Canadian Anti-Terrorism Laws and Sanctions Laws.

(e)          No Company nor any director or officer, nor to the knowledge of the Loan Parties, any agent, employee or other Person acting, directly or indirectly, on behalf of any Company, has, in the course of its actions for, or on behalf of, any Company, directly or indirectly (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977 or the Corruption of Foreign Public Officials Act (Canada); or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.

Section 3.22        Security Documents.

(a)          Subject to the entry of the Confirmation Order, the Security Agreement is effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable security interests in, the Security Agreement Collateral and, (i) when financing statements (including fixture filings and transmitting utility filings, as applicable) and other filings in appropriate form are filed in the appropriate offices (as updated in accordance with the terms hereof) and (ii) upon the taking of possession or control by the Collateral Agent of the Security Agreement Collateral with respect to which a security interest may be perfected by possession or control (which possession or control shall be given to the Collateral Agent to the extent possession or control by the Collateral Agent is required by each Security Document), the Liens created by the Security Agreement shall, to the extent such Liens can be perfected by the taking of such actions, constitute fully perfected security interests in, all right, title and interest of the grantors thereunder in the Security Agreement Collateral, in each case subject to no Liens other than Permitted Liens.

(b)          Subject to the entry of the Confirmation Order, when (i) the Security Agreement or a short form thereof is filed in the United States Patent and Trademark Office and the United States Copyright Office, and (ii) financing statements (including fixture filings and transmitting utility filings, as applicable) and other filings in appropriate form are filed in the appropriate offices (as updated in accordance with the terms hereof), the Liens created by such Security Agreement shall constitute in the United States fully perfected Liens on, and security interests in, all right, title and interest of the grantors thereunder in the Intellectual Property Collateral (as defined in such Security Agreement), in each case, if and to the extent a security interest in such Intellectual Property Collateral can be perfected solely by such filings.

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Section 3.23        No EEA Financial Institution.  No Loan Party is an EEA Financial Institution.

ARTICLE IV

CONDITIONS TO CREDIT EVENTS

Section 4.01         Conditions to Closing Date.  The obligation of each Lender to fund (or be deemed to have funded) on the Closing Date shall be subject to the prior or concurrent satisfaction of each of the conditions precedent set forth in this Section 4.01:

(a)         Loan Documents.  All legal matters incident to this Agreement, the Credit Events hereunder and the other Loan Documents shall be satisfactory to the Required Lenders and delivered to the Administrative Agent and the Lenders and there shall have been delivered to the Administrative Agent and the Lenders a properly executed counterpart of each of the Loan Documents (including the Intercreditor and Collateral Agency Agreement).

(b)          Corporate Documents.  The Administrative Agent and the Lenders shall have received (in each case satisfactory to the Required Lenders):

(i)          a certificate of the secretary or assistant secretary of each Loan Party dated the Closing Date, certifying (A) that attached thereto is a true and complete copy of each Organizational Document of such Loan Party certified (to the extent applicable) as of a recent date by the Secretary of State of the state of its incorporation or organization, as the case may be, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of Borrower, the Credit Events hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate required by this clause (i));

(ii)          a certificate as to the good standing of each Loan Party (in so-called “long-form” if available) as of a recent date, from such Secretary of State; and

(iii)         such other customary documents, instruments or certificates as the Required Lenders or the Administrative Agent may reasonably request.

(c)          Officers’ Certificate.  The Administrative Agent and the Lenders shall have received a customary certificate (reasonably satisfactory to the Required Lenders), dated the Closing Date and signed by a Financial Officer of Borrower, (x) confirming compliance with the conditions precedent set forth in Section 4.01 (other than any matters which are to be delivered by, provided by, or subject to the satisfaction of, any party other than the Loan Parties) and (y) certifying that (1) upon entry of the Confirmation Order, all member, board of directors, governmental, shareholder and other material third party consents and approvals necessary in connection with the entering into of this Agreement have been obtained or no such consents and approvals are required, and (2) the respective Indebtedness or obligations of Borrower and the Guarantors and any Liens securing the same that are outstanding immediately after the consummation of the Approved Plan shall not exceed the amount contemplated by the Approved Plan.

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(d)          Confirmation Order. The Confirmation Order, authorizing Borrower, Guarantors, and their Subsidiaries to execute, deliver, and perform their obligations under this Agreement (including the payment of all fees with respect thereto), shall have been entered and shall be in full force and effect and shall not (i) have been stayed, reversed, vacated, amended, supplemented or otherwise modified in any manner that could be reasonably expected to adversely affect the interests of the Administrative Agent or the Required Lenders or (ii) be the subject of an appeal;

(e)          Exit Transactions.  The Exit Transactions, including the Approved Plan and all transactions contemplated therein and in the Confirmation Order to occur on the effective date of the Approved Plan, shall have been (or concurrently with the occurrence of the Closing Date, shall be) substantially consummated in accordance with applicable law, Bankruptcy Court, and regulatory approvals and on terms and conditions, and pursuant to documentation in form and substance reasonably satisfactory to, the Required Lenders;

(f)          Collateral.

(i)          Personal Property Requirements.  Except as otherwise provided in the Post-Closing Agreement, the Collateral Agent and the Lenders shall have received:

(1)        all certificates, agreements or instruments representing or evidencing the Securities Collateral accompanied by instruments of transfer and stock powers undated and endorsed in blank to the Collateral Agent; the Intercompany Note executed by and among the Companies, accompanied by an endorsement to the Intercompany Note in the form attached thereto, undated and endorsed in blank by each of the Loan Parties;

(2)        all other certificates, agreements, including control agreements, or instruments necessary to perfect the Collateral Agent’s security interest in all Chattel Paper, all Instruments, all Deposit Accounts and all Investment Property of each Loan Party, in each case to the extent constituting Collateral (as each such term is defined in, and to the extent required by, the Security Agreement);

(3)        UCC financing statements (including fixture filings and transmitting utility filings, as applicable) in appropriate form for filing under the UCC, filings with the United States Patent and Trademark Office and United States Copyright Office and such other documents under applicable Legal Requirements in each jurisdiction as may be necessary or appropriate or, in the opinion of the Collateral Agent, desirable to perfect the Liens created, or purported to be created, by the Security Documents;

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(4)         certified copies, each as of a recent date, of (1) UCC searches with respect to each Loan Party that the Collateral Agent deems necessary or appropriate, (2) United States Patent and Trademark Office and United States Copyright Office searches with respect to each Loan Party, (3) tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches listing all effective lien notices or comparable documents that name any Company as debtor and that are filed in the state and county jurisdictions in which any Company is organized or maintains its principal place of business, and (4) such other searches that the Collateral Agent deems necessary or appropriate;

(5)         with respect to each location set forth in the Perfection Certificate, a Landlord Access Agreement or Bailee Letter, as applicable; and

(6)       evidence reasonably acceptable to the Collateral Agent of payment or arrangements for payment by the Loan Parties of all applicable filing or recording taxes, fees, charges, costs and expenses required for the filing or recording of the Security Documents.

(ii)          Real Property.  Except as otherwise provided in the Post-Closing Agreement, the Collateral Agent and the Lenders shall have received:

(1)        a Mortgage encumbering each Material Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any leasehold interest in such Material Property, and otherwise in form for recording or filing in the recording or filing office of each applicable governmental subdivision where each such Material Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Legal Requirements, and such financing statements (including fixture filings and transmitting utility filings, as applicable) and any other instruments necessary to grant a mortgage Lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent;

(2)        with respect to each Material Property, such consents, approvals, amendments, supplements, estoppels, memoranda of leases or other instruments as are necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee or leasehold interest constituting such Material Property to grant the Lien contemplated by the Mortgage with respect to such Material Property;

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(3)         with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Material Property and fixtures described therein in the amount equal to not less than 100% of the Fair Market Value of such Material Property and fixtures or other value reasonably acceptable to the Collateral Agent, which Fair Market Value (or such other value) as of the Closing Date is set forth in the Perfection Certificate, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable Legal Requirements (i.e., policies which insure against losses regardless of location or allocated value of the insured Property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, opinions of special counsel, architects or other professionals reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, variable rate, environmental lien, subdivision, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions), and (E) contain no exceptions to title other than exceptions reasonably acceptable to the Collateral Agent;

(4)        with respect to each Material Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the Title Policy/ies and endorsements contemplated above;

(5)         evidence reasonably acceptable to the Collateral Agent of payment by Borrower of all Title Policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the Title Policies referred to above;

(6)         with respect to each Material Property, copies of (i) all Leases in which any Loan Party holds the lessor’s interest or other agreements relating to possessory interests, if any and (ii) all Data Center Leases;

(7)         with respect to each Material Property, each Loan Party shall have made all notifications, registrations and filings, to the extent required by, and in accordance with, all Governmental Real Property Disclosure Requirements applicable to such Material Property;

(8)        evidence in the form of a standard “life of loan” flood hazard determination certificate for each Material Property as to whether (i) such Material Property is a Flood Hazard Property and (ii) the community in which such Flood Hazard Property is located is participating in the National Flood Insurance Program; and

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(9)        if such Material Property is a Flood Hazard Property, the relevant Loan Party’s written acknowledgment of receipt of written notification from the Administrative Agent (i) as to the existence of such Flood Hazard Property and (ii) as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program.

(g)         Perfection Certificate.  The Administrative Agent and the Lenders shall have received a completed Perfection Certificate, dated the Closing Date and signed by a Responsible Officer of Borrower, together with all attachments contemplated thereby, and the results of a search of the UCC (or equivalent), tax and judgment, United States Patent and Trademark Office and United States Copyright Office filings made with respect to the Loan Parties in the jurisdictions contemplated by or listed on the Perfection Certificate and copies of the financing statements (or similar documents) disclosed by such search and evidence satisfactory to the Administrative Agent (acting at the direction of Required Lenders) that the Liens indicated by such financing statements (or similar documents) are Permitted Liens or have been, or will be simultaneously or substantially concurrently with the closing under this Agreement, released (or arrangements satisfactory to the Administrative Agent (acting at the direction of Required Lenders) for such release shall have been made).

(h)          Funds Flow. The Administrative Agent and the Lenders shall have received a funds flow memorandum acceptable to the Required Lenders, executed by a Responsible Officer of Borrower as of the Closing Date.

(i)          Solvency Certificate. The Administrative Agent and the Lenders shall have received a solvency certificate from the chief financial officer, chief accounting officer or other officer with equivalent duties of Borrower (after giving effect to the Exit Transactions) substantially in the form attached hereto as Exhibit B.

(j)          Legal Opinions. The Administrative Agent and the Lenders shall have received, on behalf of itself, the other Agents, and the Lenders, a favorable written opinion of Jenner & Block LLP, special counsel for the Loan Parties, and Fasken Martineau DuMoulin LLP, special Canadian counsel for the Loan Parties, which opinions will be (A) dated the Closing Date, (B) addressed to the Agents and the Lenders and (C) covering such matters relating to the Loan Documents and the Transactions as the Administrative Agent shall reasonably request.

(k)          First Out Term Loan Facility. The Administrative Agent and the Lenders shall have received evidence reasonably satisfactory to it (acting at the direction of Required Lenders) that substantially simultaneously with the deemed making of the Loans hereunder on the Closing Date, the First Out Term Loan Credit Agreement and the other First Out Term Loan Documents, in each case, shall have been entered into, and the financing transactions thereunder shall have been consummated, in accordance with their terms on the Closing Date.

(l)          [Reserved].

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(m)       Financials.  The Administrative Agent and the Lenders shall have received, and the Required Lenders shall be reasonably satisfied with, at least 1 Business Day prior to the Closing Date, (i) an unaudited financial summary of the financial performance, bookings update, and unaudited income statement, and a balance sheet of Borrower and its Subsidiaries on a consolidated basis for the month ended March 31, 2020 and (ii) an updated 13-Week cash flow forecast as of the Closing Date.

(n)          No Default.  No Default or Event of Default shall have occurred and be continuing or would result from the Exit Transactions.

(o)          Material Adverse Effect. Since the Petition Date, there shall not have occurred any event, change, occurrence or effect that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(p)          Representation and Warranties.  As of the Closing Date, each of the representations and warranties relating to any Company set forth in Article III or in any other Loan Document shall be true and correct in all material respects on and as of the Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date); providedthat any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on and as of the Closing Date.

(q)          Existing Indebtedness. The obligations under the DIP Credit Agreement and the Pre-Petition Credit Agreement shall have been repaid (or deemed repaid) on the Closing Date, including the conversion of DIP Roll Up Loans and the DIP New Money Loans (in each case, as defined in the DIP Credit Agreement) into First Out Term Loans under the First Out Term Loan Credit Agreement. The Administrative Agent and the Lenders shall have received satisfactory release letters with respect to all existing Indebtedness under the DIP Credit Agreement and the Pre-Petition Credit Agreement and, in each case, which confirms that all Liens upon any of the property of the Loan Parties in connection with the obligations thereunder will be terminated concurrently with such payment (together with copies of all relevant release documents in recordable form and executed where applicable).

(r)          Fees.  All Fees (including any fees to be paid for the account of any Lender on the Closing Date that Borrower has previously agreed to in writing) and other amounts due and payable on or before the Closing Date, including, to the extent invoiced not less than one Business Day prior to the Closing Date, reimbursement or payment of all out-of-pocket expenses (including the premiums and recording taxes and fees and the legal fees and expenses of the Specified Lender Advisors, Jones Day, as legal counsel to the administrative agent and the collateral agent under the DIP Credit Agreement, and Willkie Farr & Gallagher LLP, as legal counsel to the Administrative Agent and the Collateral Agent), and the fees and expenses of any local counsel, foreign counsel, appraisers, consultants and other advisors, shall be paid (or will be paid from the proceeds of the Loans), in each case to the extent required to be reimbursed or paid by the Loan Parties hereunder or under any other Loan Document.

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(s)         Bank Regulatory Documentation.  To the extent requested not less than three Business Days prior to the Closing Date, the Administrative Agent and the Lenders shall have received, in form and substance satisfactory to them, all documentation and other information required by bank regulatory authorities or reasonably requested by the Administrative Agent or any Lender under or in respect of applicable Anti-Terrorism Laws or “know-your-customer” Legal Requirements, including the Executive Order.

Section 4.02        Conditions to All Credit Events.  The obligation of each Lender to make any Credit Event shall be subject to, and to the satisfaction, or waiver by the Required Lenders, of each of the conditions precedent set forth below.

(a)          No Default.  At the time of and immediately after giving effect to such Credit Event and the application of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing on such date.

(b)          Representations and Warranties.  Each of the representations and warranties made by any Loan Party set forth in Article III or in any other Loan Document shall be true and correct in all material respects on and as of the date of such Credit Event with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects on and as of such earlier date); providedthat any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.

(c)          Fees.  All reasonable and documented out-of-pocket fees and expenses required to be paid under the Loan Documents shall have been paid.

ARTICLE V

AFFIRMATIVE COVENANTS

Each Loan Party warrants, covenants and agrees with the Administrative Agent, the Collateral Agent, and each Lender that so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest and premium (if any) on each Loan, all Fees and all other expenses or amounts then due and payable under any Loan Document shall have been paid in full, each Loan Party will, and will cause each of its Subsidiaries to:

Section 5.01        Financial Statements, Reports, etc.  Furnish to the Administrative Agent for distribution to the Lenders:

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(a)          Annual Reports.  Within 120 days after the end of each fiscal year, (i) the audited consolidated balance sheet of Borrower and its Subsidiaries as of the end of such fiscal year and related consolidated statements of income, cash flows and stockholders’ equity for such fiscal year, in comparative form with such financial statements as of the end of, and for, the preceding fiscal year (for periods occurring after the implementation of “fresh-start” accounting), and notes thereto, all prepared in accordance with GAAP and accompanied by an opinion of BDO USA, LLP or other independent public accountants of recognized national standing, stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of Borrower and such Subsidiaries as of the dates and for the periods specified in accordance with GAAP and (ii) a management’s discussion and analysis of the financial condition and results of operations for such fiscal year, as compared to the previous fiscal year and budgeted amounts;

(b)          Quarterly Reports.  Within 45 days of the end of the first three fiscal quarters of each fiscal year (except (x) with respect to the fiscal quarter ending June 30, 2020, within 75 days of the end of such fiscal quarter and (y) with respect to the fiscal quarter ending September 30, 2020, within 60 days of the end of such fiscal quarter), (i) the consolidated balance sheet of Borrower and its Subsidiaries as of the end of such fiscal quarter and related consolidated statements of income and cash flows for such fiscal quarter and for the then elapsed portion of the fiscal year, in comparative form with the consolidated statements of income and cash flows for the comparable periods in the previous fiscal year (for periods occurring after the implementation of “fresh-start” accounting), and notes thereto, all prepared in accordance with GAAP (subject to normal year-end audit adjustments and the absence of footnotes) and accompanied by a certificate of a Financial Officer stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of Borrower and such Subsidiaries as of the date and for the periods specified in accordance with GAAP consistently applied, and on a basis consistent with audited financial statements referred to in clause (a) of this Section 5.01, subject to normal year-end audit adjustments and the absence of footnotes and (ii) a management’s discussion and analysis of the financial condition and results of operations for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year and budgeted amounts;

(c)         Financial Officer’s Certificate.  Concurrently with any delivery of financial statements under Section 5.01(a) or (b) above, a Compliance Certificate certifying that no Default or Event of Default has occurred or, if such a Default or Event of Default has occurred, specifying in reasonable detail the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto;

(d)          [Reserved];

(e)          Public Reports.  Promptly after the same become publicly available, copies of all periodic and other reports, proxy statements, notices and other materials or information filed by any Company with the SEC, or any Governmental Authority succeeding to any or all of the functions of the SEC, or with any national securities exchange, or distributed to holders of its Indebtedness pursuant to the terms of the documentation governing such Indebtedness (or any trustee, agent or other representative therefor), as the case may be;

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(f)          Management Letters.  Promptly after the receipt thereof by any Company, a copy of any “management letter” or similar document received by any such Person from its certified public accountants and the management’s responses thereto;

(g)        Budgets.  As soon as available and in any event within 90 days after the end of each fiscal year of Borrower (but no later than any delivery of financial statements under Section 5.01(a)), a consolidated budget in form reasonably satisfactory to the Administrative Agent (including budgeted statements of income for each of Borrower’s and its Subsidiaries’ business units and sources and uses of cash and balance sheets) prepared by Borrower for (i) each fiscal quarter of such fiscal year prepared in detail and (ii) such fiscal year and the immediately two succeeding fiscal years (except that no budget is required to be provided for any fiscal year after the fiscal year in which the Final Maturity Date occurs) in summary form, in each case, of Borrower and its Subsidiaries, with appropriate presentation and discussion in reasonable detail of the principal assumptions upon which such budget is based, accompanied by a certificate of a Financial Officer of Borrower certifying that the budget of Borrower and its Subsidiaries is a reasonable estimate for the period covered thereby;

(h)         Certification of Public Information.  Borrower and each Lender acknowledges that certain of the Lenders may be Public Lenders and, if documents or notices required to be delivered pursuant to this Section 5.01 or otherwise are being distributed through a Platform, any document or notice that Borrower has not specifically labeled “Public-Contains Only Public Information” shall not be posted on that portion of the Platform designated for such Public Lenders.  If Borrower has not so labeled a document or notice delivered pursuant to this Section 5.01, the Administrative Agent reserves the right to post such document or notice solely on that portion of the Platform designated for Lenders who wish to receive material Non-Public Information with respect to Borrower, its Subsidiaries and their securities.  Notwithstanding anything in any Loan Document to the contrary, documents required to be delivered pursuant to Sections 5.01(a)(i) and (b)(i) may be posted on that portion of the Platform designated for Public Lenders regardless of whether Borrower has or has not specifically labeled any such document “Public-Contains Only Public Information;”

(i)        Regulatory Information.  Promptly, from time to time, copies of such reports and written information to and from any Governmental Authority, including the FCC and any PUC, with jurisdiction over the Property or business of any Company, as the Administrative Agent may reasonably request; and

(j)         Other Information.  Promptly, from time to time, such other information regarding the operations, business affairs and financial condition of any Company, or compliance with the terms of any Loan Document, or the environmental condition of any Real Property, as the Administrative Agent or any Lender may reasonably request.  Each Lender acknowledges that the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to in this Section 5.01, and in any event shall have no responsibility to monitor compliance by Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery (from the Administrative Agent) of or maintaining its copies of such documents.

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Documents required to be delivered pursuant to Section 5.01(a), (b) or (e) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and shall be deemed to have been delivered on the date (1) on which Borrower posts such documents, or provides a link thereto, on Borrower’s website on the Internet and gives written notice thereof to the Administrative Agent; or (2) on which such documents are posted on a U.S. government website or on Borrower’s behalf on an Internet or intranet website, if any, in each case, to which the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).

Section 5.02       Litigation and Other Notices.  Furnish to the Administrative Agent (who shall distribute to the Lenders) written notice of the following promptly (and, in any event, within ten (10) Business Days (or, in the case of Section 5.02(a), within five (5) Business Days) following the occurrence thereof):

(a)          knowledge of the occurrence of any Default or the occurrence of any Event of Default, specifying the nature and extent thereof and the corrective action (if any) taken or proposed to be taken with respect thereto;

(b)          the filing or commencement of, or any threat or notice of intention of any Person to file or commence, any action, suit, litigation or proceeding, whether at law or in equity or otherwise by or before any Governmental Authority, (i) against any Company or any Affiliate thereof that has had, or could reasonably be expected to result in, a Material Adverse Effect, (ii) with respect to any Loan Document or (iii) with respect to any of the other Transactions;

(c)          any development that has resulted, or could reasonably be expected to result, in a Material Adverse Effect;

(d)          the occurrence of a Casualty Event in excess of $10,000,000 (whether or not covered by insurance);

(e)          the occurrence of any ERISA Event or any events with respect to Canadian Pension Plans or Foreign Plans that, alone or together with any other ERISA Events or any events with respect to Canadian Pension Plans or Foreign Plans that have occurred, could reasonably be expected to result in liability of Borrower and its Subsidiaries in an aggregate amount exceeding $10,000,000;

(f)          the receipt by any Company of any notice of any Environmental Claim, Release or violation of or potential liability under, or knowledge by any Company that there exists a condition that has resulted, or could reasonably be expected to result, in an Environmental Claim, Release or a violation of or liability under, any Environmental Law, except for Environmental Claims, Releases, violations and liabilities the consequence of which, in the aggregate, have not subjected and could not be reasonably be expected to subject the Companies collectively to liabilities exceeding $10,000,000; and

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(g)          any Material Adverse Lease Event.

Section 5.03        Existence; Businesses and Properties.

(a)         Do or cause to be done all things necessary to preserve, renew and maintain in full force and effect its legal existence and take all commercially reasonable action to maintain all rights and franchises, licenses and permits material to its business, except as otherwise expressly permitted under Section 6.05 or 6.06.

(b)          Except if the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, do or cause to be done all things that are commercially reasonable and necessary to maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear excepted, all material properties used or useful in the business of Borrower and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs, renewals and replacements thereof, consistent with past practice.

Section 5.04        Insurance.

(a)         Maintain, with insurers that Borrower believes in good faith are financially sound and reputable, insurance, to such extent and against such risks as is customary with companies in the same or similar businesses operating in the same or similar locations in similar circumstances, including insurance with respect to the Material Properties against such casualties and contingencies and of such types and in such amounts with such deductibles and provisions for minimum claim amounts as is customary in the case of similar businesses operating in the same or similar locations, and will furnish to the Administrative Agent, upon its written request, information presented in reasonable detail as to the insurance so carried; providedthat with respect to physical hazard insurance, following the occurrence and during the continuation of an Event of Default, the Collateral Agent shall be entitled to agree to the adjustment of any claim thereunder without the consent of any Company.  No later than 10 Business Days following the Closing Date (or such later date as the Required Lenders shall agree), each such policy of insurance shall as appropriate, (i) name the Collateral Agent, on behalf of the Lenders, as an additional insured thereunder as its interests may appear and/or (ii) in the case of each casualty insurance policy, contain a loss payable clause or endorsement that names the Collateral Agent, on behalf of the Lenders, as lender’s loss payee thereunder.

(b)         With respect to each Material Property, obtain flood insurance (which may take the form of a separate policy or be included as part of Borrower’s casualty insurance policy) in such total amount as the Administrative Agent or the Required Lenders may from time to time reasonably require, if at any time the area in which any improvements located on any Material Property is designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973.

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(c)         No Loan Party that is an owner or lessee of any Material Property shall take any action that is reasonably likely to be the basis for termination, revocation or denial of any insurance coverage required to be maintained under such Loan Party’s respective mortgage or under Section 5.04(a), and each Loan Party shall otherwise comply in all material respects with all material Insurance Requirements in respect of the premises; provided, however, that each Loan Party may, at its own expense and after written notice to the Administrative Agent, (i) contest the applicability or enforceability of any such Insurance Requirements by appropriate legal proceedings, the prosecution of which does not constitute a basis for cancellation or revocation of any insurance coverage required under this Section 5.04 or (ii) cause the Insurance Policy containing any such Insurance Requirement to be replaced by a new policy complying with the provisions of this Section 5.04.

Section 5.05       Obligations and Taxes.  File all applicable Tax returns and pay and discharge promptly when due all Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its Property, before the same shall become delinquent or in default, as well as all lawful claims for labor, services, materials and supplies or otherwise that, if unpaid, might give rise to a Lien other than a Permitted Lien upon such properties or any part thereof; provided that such payment and discharge shall not be required with respect to any such Tax, assessment, charge, levy or claim so long as (i) the validity or amount thereof shall be contested in good faith by appropriate proceedings timely instituted and diligently conducted and the applicable Company shall have set aside on its books adequate reserves or other appropriate provisions with respect thereto in accordance with GAAP, and (ii) such contest operates to suspend collection of the contested obligation, Tax, assessment or charge and enforcement of a Lien other than a Permitted Lien.

Section 5.06        Employee Benefits.

(a)          Furnish to the Administrative Agent (x) as soon as possible after, and in any event within five (5) Business Days after any Responsible Officer of any Company or any ERISA Affiliate of any Company knows or has reason to know that, any ERISA Event or other event with respect to an Employee Benefit Plan has occurred that, alone or together with any other ERISA Event could reasonably be expected to result in liability of the Companies or any of their ERISA Affiliates in an aggregate amount exceeding $10,000,000 or the imposition of a Lien, a statement of a Financial Officer of Borrower setting forth details as to such ERISA Event and the action, if any, that the Companies propose to take with respect thereto, and (y) upon request by the Administrative Agent, copies of (i) any annual report (Form 5500 Series) filed by any Company or any of its ERISA Affiliates with the Employee Benefits Security Administration with respect to each Employee Benefit Plan; (ii) the most recent actuarial valuation report for each Pension Plan or Multiemployer Plan and each annual report for any Multiemployer Plan; (iii) all notices received by any Company or any of its ERISA Affiliates from a Multiemployer Plan sponsor or any Governmental Authority concerning an ERISA Event; and (iv) such other information, documents or governmental reports or filings relating to any Employee Benefit Plan as the Administrative Agent shall reasonably request.

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(b)          Maintain all Employee Benefit Plans, Canadian Pension Plans and Foreign Plans in compliance in all material respects with all applicable Legal Requirements and ensure that all premiums and payments relating to Employee Benefit Plans, Canadian Pension Plans and Foreign Plans are paid as due, except to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect; provided, however, that a Loan Party may terminate any such plan in accordance with all applicable Legal Requirements if the aggregate unfunded liability to the Loan Parties is not greater than $10,000,000.

Section 5.07          Maintaining Records; Access to Properties and Inspections; Annual Meetings.

(a)          Keep proper books of record and account in which entries in conformity with GAAP are made of all material dealings and transactions in relation to its business and activities.  Upon reasonable advance notice (unless an Event of Default exists, in which case no notice shall be required), each Company will permit any representatives designated by the Administrative Agent or any Lender during normal business hours to visit and inspect the financial records and the Property of such Company and to make extracts from and copies of such financial records, and permit any representatives designated by the Administrative Agent or any Lender to discuss the affairs, finances, accounts and condition of any Company with the officers and employees thereof and advisors therefor (including independent accountants); provided that (i) excluding any such visits and inspections during the continuation of an Event of Default, only representatives of the Administrative Agent or the Collateral Agent on behalf of the Secured Parties, may exercise visitation and inspection rights under this Section 5.07, and (ii) the Administrative Agent and the Secured Parties shall not exercise such rights more than twice in any period of 12 consecutive months, absent the existence of an Event of Default.

(b)          Within one hundred thirty five (135) days after the close of each fiscal year of the Companies, at the request of the Administrative Agent or Required Lenders, hold a meeting (at a mutually agreeable location and time or, at the option of the Required Lenders, a conference call) with all Lenders who choose to attend such meeting or conference call at which meeting or conference call shall be reviewed the financial results of the previous fiscal year and the financial condition of the Companies and the budget presented for the current fiscal year of the Companies.

Section 5.08        [Reserved].

Section 5.09       Compliance with Environmental Laws; Environmental Reports.  Except for exceptions to the following that could not reasonably be expected to result in a Material Adverse Effect, comply, and use commercially reasonable efforts to cause all lessees and other Persons occupying its properties to comply, in all respects with all Environmental Laws applicable to its operations and properties; obtain and renew all material Environmental Permits necessary for its operations and properties; and conduct any remedial action required in accordance with Environmental Laws; provided, however, that none of Borrower or any Subsidiary shall be required to undertake any remedial action required by Environmental Laws to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in accordance with GAAP.

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Section 5.10        Compliance Policy.  Maintain compliance policies and procedures applicable to each Company that are designed to ensure compliance with Sections 6.18 and 6.19 by each Company, which compliance policies and procedures shall include:  (a) take-down policies and procedures for websites paid for or on behalf of Embargoed Persons or otherwise in violation of any Sanctions Law; (b) policies and procedures for screening and otherwise verifying that no Company directly or indirectly accepts as a new customer, maintains a customer relationship with, nor receives any payment from, any Embargoed Person; and (c) policies and procedures for ensuring continued compliance with the Sanctions Laws, including: (i) training all employees, directors and officers of each Company with respect to the Sanctions Laws; (ii) policies and procedures with respect to resellers, vendors and service providers of each Company (collectively, “Third Parties”) regarding such Third Parties’ compliance with the Sanctions Laws and remedies with respect to any Third Party’s failure to comply with the Sanctions Laws; (iii) timely and appropriately monitoring activities of each Company to ensure compliance with these policies and procedures;  (iv) investigating alleged or potential violations of the Sanctions Laws by any Person or entity within any Company; (v) determining the conditions under which voluntary disclosures will be made to Governmental Authorities following the discovery and/or investigation of actual or potential violations of the Sanctions Laws; and  (vi) maintaining all records required under the Sanctions Laws.

Section 5.11        Additional Collateral; Additional Guarantors.

(a)         Subject to this Section 5.11, with respect to any Property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject (but, in any event, excluding any Excluded Property) promptly (and in any event within thirty (30) Business Days after the acquisition thereof as may be extended with the consent of the Required Lenders in their sole discretion) (i) execute and deliver to the Administrative Agent, the Lenders and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent (in each case, acting at the direction of the Required Lenders) or the Required Lenders shall reasonably deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such Property subject to no Liens other than Permitted Liens and (ii) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Documents in accordance with all applicable Legal Requirements, including the filing of financing statements (including fixture filings and transmitting utility filings, as applicable) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent (in each case, acting at the direction of the Required Lenders) or the Required Lenders.  Borrower and the other Loan Parties shall (subject to the limitations set forth in the Security Documents) otherwise take such actions and execute and/or deliver to the Collateral Agent and the Lenders such documents as the Required Lenders or the Administrative Agent or the Collateral Agent shall reasonably require (in each case, acting at the direction of the Required Lenders) to confirm the validity, perfection and priority of the Lien of the Security Documents against such after-acquired properties.

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(b)          Subject to any limitations in the Security Documents, with respect to any Person that is or becomes a Wholly Owned Subsidiary of a Loan Party after the Closing Date (except to the extent any of the following constitutes Property that is Excluded Property or is otherwise excluded as Collateral under the Security Agreement), such Person shall promptly (as may be extended with the consent of the Required Lenders in their sole discretion), deliver to the Collateral Agent and the Lenders, as and to the extent required by the Security Agreement, the certificates, if any, representing all of the Equity Interests of such Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and cause such new Subsidiary (A) to execute a Joinder Agreement to become a Guarantor and a Pledgor or, in the case of a Foreign Subsidiary, if requested by the Administrative Agent or the Collateral Agent (in each case, acting at the direction of the Required Lenders) or the Required Lenders, execute a security document compatible with the laws of such Foreign Subsidiary’s jurisdiction of organization (and in form and substance reasonably satisfactory to the Required Lenders) to cause such Subsidiary to become a Guarantor and a Pledgor, and (B) to take all actions necessary or advisable in the reasonable opinion of the Administrative Agent, the Collateral Agent (in each case, acting at the direction of the Required Lenders) or the Required Lenders to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such Security Document, including the filing of financing statements (including fixture filings and transmitting utility filings, as applicable) or equivalent registrations in such jurisdictions as may be reasonably requested by the Required Lenders or by the Administrative Agent or the Collateral Agent (in each case, acting at the direction of the Required Lenders).

(c)          With respect to any Person that is or becomes a Subsidiary of a Loan Party after the Closing Date, promptly (and in any event within ten (10) Business Days after such Person becomes a Subsidiary as may be extended with the consent of the Required Lenders in their sole discretion) execute and deliver to the Collateral Agent (i) a counterpart to the Intercompany Note and (ii) if such Subsidiary is a Loan Party, an endorsement to the Intercompany Note (undated and endorsed in blank) in the form attached thereto, endorsed by such Subsidiary.

(d)          (A) Promptly grant to the Collateral Agent (and in any event within thirty (30) Business Days of the acquisition thereof as may be extended with the consent of the Required Lenders in their sole discretion) a security interest in and Mortgage on (i) each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon (other than any Excluded Property, as defined in the Security Agreement), individually has a Fair Market Value on the date of acquisition thereof of at least $2,500,000 and (ii) each leased Real Property of such Loan Party of a “company-controlled” data center (unless the Required Lenders otherwise consent or the applicable Loan Party shall have used all commercially reasonable efforts to obtain, but failed to obtain, such Mortgage), in each case, as additional security for the Secured Obligations (unless the subject Property is already mortgaged to a third party to the extent permitted by Section 6.02(i)). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Collateral Agent or the Required Lenders and shall constitute valid and enforceable perfected first priority Liens subject only to Permitted Liens. Such Loan Party shall promptly deliver to the Collateral Agent (and in any event within thirty (30) Business Days as may be extended with the consent of the Required Lenders in their sole discretion) a Landlord Access Agreement with respect to each Data Center Lease (unless the applicable Loan Party shall have used all commercially reasonable efforts to obtain, but failed to obtain, such Landlord Access Agreements within such 30 Business Day period). The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by applicable Legal Requirements to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent, the Collateral Agent (in each case, acting at the direction of the Required Lenders) or the Required Lenders shall reasonably require to confirm the validity, enforceability, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after acquired Real Property (including, but not limited to, a Title Policy, a Survey and environmental assessments (only with respect to such Real Property owned in fee by such Loan Party) and, if reasonably requested by the Administrative Agent (acting at the direction of the Required Lenders) or the Required Lenders, a customary local counsel opinion in respect of such Mortgage, in each case, in form and substance reasonably satisfactory to the Administrative Agent, the Collateral Agent or the Required Lenders).

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(e)          Notwithstanding anything to the contrary herein or in any other Loan Document, the Loan Parties shall not have to create any Lien or perfect any Lien in any particular assets, or obtain title insurance in respect of any asset if, in the reasonable judgment of the Required Lenders evidenced in writing, determined in consultation with Borrower, the burden, cost or consequences of creating or perfecting such Liens in such assets or obtaining title insurance is excessive in relation to the benefits to be obtained therefrom by the Lenders under the Loan Documents.

Section 5.12         Security Interests; Further Assurances.

(a)          Promptly, upon the reasonable request of the Required Lenders or of the Administrative Agent or the Collateral Agent (in each case, acting at the direction of the Required Lenders), at the Companies’ expense, execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded, in an appropriate governmental office, any document or instrument supplemental to or confirmatory of the Security Documents or otherwise reasonably deemed by the Required Lenders or by the Administrative Agent or the Collateral Agent (in each case, acting at the direction of the Required Lenders) necessary or desirable for the continued validity, enforceability, perfection and priority of the Liens on the Collateral (other than Excluded Perfection Collateral (as defined in the Security Agreement)) covered thereby subject to no other Liens except Permitted Liens, or (subject to any limitations in the Security Documents) obtain any consents or waivers as may be necessary or appropriate in connection therewith.

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(b)          Deliver or cause to be delivered to the Lenders, the Administrative Agent and the Collateral Agent from time to time such other documentation, instruments, consents, authorizations, approvals and Orders in form and substance reasonably satisfactory to the Required Lenders as required by applicable Legal Requirements or as the Administrative Agent and the Collateral Agent (in each case acting at the direction of the Required Lenders) or the Required Lenders shall reasonably deem necessary or advisable to perfect or maintain the validity, enforceability, perfection and priority of the Liens on the Collateral (other than Excluded Perfection Collateral (as defined in the Security Agreement)) pursuant to the Security Documents.

(c)          Notwithstanding anything to the contrary herein or in any other Loan Document, so long as no Event of Default exists, in no event shall any Loan Party or any Subsidiary of a Loan Party be required to take any action (i) outside of the United States or Canada to perfect any Lien on (A) the Equity Interests of any Foreign Subsidiary that is an Immaterial Subsidiary or (B) a Foreign Subsidiary (or any of its assets) that is an Immaterial Subsidiary or (ii) that is not required to be taken pursuant to the terms of the Security Agreement.

Section 5.13        [Reserved].

Section 5.14        Information Regarding Collateral. Concurrently with the delivery of financial statements pursuant to Section 5.01(a), deliver to the Administrative Agent and the Collateral Agent a Perfection Certificate Supplement.

Section 5.15        Obtaining Ratings.  Use commercially reasonable efforts to cause the Loans and Borrower’s corporate credit to be rated by Standard & Poor’s Rating Services and Moody’s Investors Service Inc. (but not to maintain a specific rating).

Section 5.16       Deposit Accounts.  On or prior to 30 days after the Closing Date (or such later time to which the Required Lenders may reasonably agree), each Loan Party shall enter into an effective account control agreement (a “Deposit Account Control Agreement”) with each account bank, in form and substance reasonably satisfactory to the Required Lenders (it being agreed that any such agreement requiring the Administrative Agent to indemnify a deposit bank in its individual capacity shall not be reasonably acceptable to the Required Lenders without the Administrative Agent’s consent), with respect to each primary domestic concentration Deposit Account in which funds of any of the Loan Parties are deposited and a Securities Account Control Agreement for any Securities Account where securities are or may be maintained (including those existing as of the Closing Date, excluding Excluded Accounts).  In addition, Borrower shall enter into a Deposit Account Control Agreement or a Securities Account Control Agreement with respect to any such Deposit Account or Securities Account other than an Excluded Account which is established after the Closing Date, promptly and in any event within 30 days upon such establishment (or such longer period as the Required Lenders may agree in their discretion).

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Section 5.17        Compliance with Confirmation Order and Approved Plan.  The Loan Parties shall, and shall cause their Subsidiaries to, comply with the Confirmation Order and Approved Plan at all times required thereby.

ARTICLE VI

NEGATIVE COVENANTS

Each Loan Party warrants, covenants and agrees with the Administrative Agent, the Collateral Agent and each Lender that, so long as this Agreement shall remain in effect and until the Commitments have been terminated and the principal of and interest and premium (if any) on each Loan, all Fees and all other expenses or amounts then due and payable under any Loan Document have been paid in full, no Loan Party will, nor will they cause or permit any of their Subsidiaries to:

Section 6.01        Indebtedness.  Incur, create, assume or permit to exist, directly or indirectly, any Indebtedness, except:

(a)          Indebtedness incurred under this Agreement and the other Loan Documents, including, for the avoidance of doubt, any Incremental Loans permitted to be incurred hereunder;

(b)          Indebtedness outstanding on the Closing Date (including the (i) Indebtedness under the First Out Term Loan Documents in an aggregate principal amount of $75,100,000 and (ii) Indebtedness under outstanding letters of credit);

(c)        Indebtedness consisting of Hedging Obligations, in each case entered into in the ordinary course of business and not for speculative purposes or taking a “market view”; provided that if such Hedging Obligations relate to interest rates, (i) such Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (ii) the notional principal amount of such Hedging Obligations at the time incurred does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate;

(d)          Indebtedness in respect of a revolving credit facility in a maximum principal amount not to exceed $25,000,000 at any time outstanding, which maximum principal amount may be increased to include a letter of credit subfacility in an aggregate face amount not to exceed, together with the face amount under any letter of credit facility under subclause (f), $7,500,000, so long as there is no obligor under any such Indebtedness under this clause (d) that is not a Loan Party hereunder;

(e)          Indebtedness of Borrower and its Subsidiaries in respect of Purchase Money Obligations, Synthetic Lease Obligations and Capital Lease Obligations in an aggregate amount (together with any refinancing thereof permitted under clause (m)) not to exceed, at any time outstanding, $25,000,000, provided, however, that, in the case of Purchase Money Obligations, (A) such Indebtedness is incurred within 120 days after such acquisition, installation, construction, repair, replacement or improvement of such fixed or capital assets (including Equity Interests of any Person owning the applicable fixed or capital assets) by such Person and (B) the amount of such Indebtedness does not exceed 100% of the cost of such acquisition, installation, construction, repair, replacement or improvement, as the case may be;

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(f)          Indebtedness with respect to a letter of credit facility in a maximum face amount not to exceed at any time, together with the maximum face amount of any letter of credit subfacility under clause (d) above, $7,500,000;

(g)         Indebtedness in respect of bid, performance or surety bonds issued for the account of any Company in the ordinary course of business, including guarantees or obligations of any Company incurred in the ordinary course of business with respect to letters of credit supporting such bid, performance or surety obligations (in each case other than for an obligation for money borrowed), in an aggregate amount at any time outstanding not to exceed $5,000,000;

(h)          Contingent Obligations of any Company in respect of Indebtedness otherwise permitted under this Section 6.01 (other than this Section 6.01(h));

(i)          Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within ten (10) Business Days of incurrence;

(j)           Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;

(k)          Indebtedness of any Foreign Subsidiary in an aggregate outstanding principal amount for all such Foreign Subsidiaries in an amount not to exceed, at any time outstanding, $5,000,000, provided that such Indebtedness is not directly or indirectly recourse to any of the Companies or of their respective assets, other than to such Foreign Subsidiary or any Subsidiary thereof which is a Foreign Subsidiary;

(l)          Indebtedness of any Company in an aggregate principal amount for all Companies in an amount not to exceed, at any time outstanding, $10,000,000, provided that no Event of Default shall have occurred and be continuing at the time such Indebtedness is incurred or would result from the incurrence thereof; provided, further, that the aggregate principal amount of Indebtedness at any time outstanding incurred pursuant to this subclause (l) by any Company that is not a Guarantor shall not exceed $5,000,000;

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(m)         Indebtedness which represents a refinancing or renewal of any of the Indebtedness described in any of clauses (b), (e), (s) or (t) of this Section 6.01; provided that (A) any such refinancing Indebtedness is in an aggregate principal amount (or aggregate amount, as applicable) not greater than the aggregate principal amount (or aggregate amount, as applicable) of the Indebtedness being renewed or refinanced, plus the amount of any reasonable premiums required to be paid thereon and reasonable fees and expenses associated therewith, (B) such refinancing Indebtedness has a later or equal final maturity and longer or equal weighted average life to maturity than the Indebtedness being renewed or refinanced, (C) the covenants, events of default, subordination (including lien subordination) and other terms, conditions and provisions thereof (including any guarantees thereof or security documents in respect thereof) shall be, in the aggregate, no less favorable to the Administrative Agent, the Collateral Agent and the Lenders than those contained in the Indebtedness being renewed or refinanced, (D) no Default or Event of Default has occurred and is continuing or would result therefrom and (E) any such Indebtedness that is refinancing or renewing any Indebtedness under the First Out Term Loan Documents and Section 6.01(s) will be subject to the Intercreditor and Collateral Agency Agreement;

(n)          Indebtedness incurred to pay premiums for insurance policies maintained by Borrower or any Subsidiary thereof in the ordinary course of business;

(o)          Contingent Obligations with respect to bonds issued to support workers’ compensation, unemployment or other insurance or self-insurance obligations, and similar obligations, in each case incurred in the ordinary course of business;

(p)        Indebtedness constituting indemnification, deferred purchase price adjustments, earn-outs or other similar contingent payment obligations incurred in connection with any Investment or Disposition not prohibited hereunder (other than, in the case of a Disposition, guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition), so long as the amount does not exceed the gross proceeds actually received by Borrower or the applicable Subsidiary, as the case may be, in connection with any such Disposition;

(q)          Indebtedness in respect of take-or-pay obligations contained in supply agreements entered into in the ordinary course of business;

(r)          Indebtedness representing deferred compensation to directors, officers, employees, members of management and consultants of Borrower or any of its Subsidiaries incurred in the ordinary course of business;

(s)          Indebtedness consisting of any “Incremental Loans” as defined and incurred under the First Out Term Loan Credit Agreement as in effect on the date hereof, incurred in an aggregate principal amount not to exceed $25,000,000 plus the amount of interest that is paid in kind and added to principal thereof minus the original principal amount of Incremental Loans incurred under Section 2.17;

(t)          Indebtedness of any Person that becomes a Subsidiary after the date hereof, or Indebtedness of any Person that is assumed by Borrower or any of its Subsidiaries in connection with the acquisition of assets by Borrower or any of its Subsidiaries, in an aggregate principal amount not to exceed $20,000,000 at any time outstanding for all such Subsidiaries; provided that such Indebtedness (i) in the case of Indebtedness of any Person that becomes a Subsidiary after the date hereof, exists at the time such Person becomes a Subsidiary, (ii) is not created in anticipation or contemplation of such Person becoming a Subsidiary and (iii) is not directly or indirectly recourse to any of the Companies or any of their respective assets, other than to the Person that becomes a Subsidiary or, in the case of an acquisition of assets, to the Person acquiring such assets;

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(u)          Indebtedness in an outstanding principal amount not to exceed $100,000,000 at any time, so long as (i) the Total Net Leverage Ratio does not exceed the Incurrence Leverage Level at the time of incurrence of such Indebtedness and immediately after giving effect thereto, (ii) such Indebtedness is not incurred prior to September 30, 2020, (iii) no Default or Event of Default exists before and immediately after the incurrence of such Indebtedness, (iv) there is no obligor in respect of such Indebtedness that is not a Loan Party and (v) Borrower shall have delivered an Officers’ Certificate to the Administrative Agent certifying as to compliance with the foregoing requirements in clauses (i)-(iv);

(v)          Finance Lease Obligations in an amount not to exceed $75,000,000; and

(w)          Indebtedness constituting Investments in compliance with Section 6.04.

For purposes of determining compliance with any dollar-denominated restriction on the incurrence of Indebtedness, the dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing.

Section 6.02        Liens.  Create, incur, assume or permit to exist, directly or indirectly, any Lien on any Property now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, except the following (collectively, the “Permitted Liens”):

(a)          inchoate Liens for amounts required to be remitted but not yet due with respect to Canadian Pension Plans or for taxes, assessments or governmental charges or levies not yet due and payable or delinquent and Liens for taxes, assessments or governmental charges or levies, which are being contested in good faith by appropriate proceedings promptly initiated and diligently conducted for which adequate reserves have been established in accordance with GAAP, which proceedings (or Orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the Property subject to any such Lien;

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(b)          Liens in respect of Property of any Company imposed by law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money, such as carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’, repairmen’s and mechanics’ Liens and other similar Liens arising in the ordinary course of business, and (i) which do not in the aggregate materially detract from the value of the Property of the Companies, taken as a whole, or the Loan Parties, taken as a whole, and do not materially impair the use thereof in the operation of the business of the Companies, taken as a whole, or the Loan Parties, taken as a whole, and (ii) which, if they secure obligations that are then due and unpaid, are being contested in good faith by appropriate proceedings promptly initiated and diligently conducted for which adequate reserves have been established in accordance with GAAP, which proceedings (or Orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the Property subject to any such Lien;

(c)         any Lien in existence on the Closing Date (other than Liens securing the obligations under the First Out Term Loan Documents)  including the cash collateralization of letters of credit existing on the Closing Date and any Lien granted as a replacement or substitute therefor; providedthat any such replacement or substitute Lien (i) except as permitted by Section 6.01(m)(A), does not secure an aggregate amount of Indebtedness or other obligations, if any, greater than that secured on the Closing Date (minus the aggregate amount of any permanent repayments and prepayments thereof since the Closing Date but only to the extent that such repayments and prepayments by their terms cannot be reborrowed or redrawn and do not occur in connection with a refinancing of all or a portion of such Indebtedness) and (ii) does not encumber any Property other than the Property subject thereto on the Closing Date (any such Lien, an “Existing Lien”);

(d)         easements, rights-of-way, restrictions (including zoning restrictions), covenants, licenses, encroachments, protrusions, servitudes and other similar charges or encumbrances, and minor title deficiencies, in each case, on or with respect to any Real Property, whether now or hereafter in existence, not (i) securing Indebtedness, (ii) individually or in the aggregate materially impairing the value or marketability of such Real Property or (iii) individually or in the aggregate materially interfering with the ordinary conduct of the business of the Companies at or otherwise with respect to such Real Property;

(e)         Liens arising out of judgments, attachments or awards not resulting in an Event of Default and in respect of which such Company shall in good faith be diligently prosecuting an appeal or proceedings for review in respect of which there shall be secured a subsisting stay of execution pending such appeal or proceedings;

(f)         Liens (other than any Lien imposed by ERISA or in respect of any Foreign Plan or, except as provided in clause (a) above, any Canadian Pension Plan) (x) imposed by law or deposits made in connection therewith in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security legislation, (y) incurred in the ordinary course of business to secure the performance of tenders, statutory obligations (other than excise taxes), surety, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (in each case, exclusive of obligations for the payment of Indebtedness) or (z) arising by virtue of deposits made in the ordinary course of business to secure liability for premiums to insurance carriers; providedthat (i) with respect to clauses (x), (y) and (z) of this Section 6.02(f), such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings (or Orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the Property subject to any such Lien, and (ii) to the extent such Liens are not imposed by Legal Requirements, such Liens shall in no event encumber any Property other than cash and Cash Equivalents;

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(g)         Leases, subleases or licenses of the properties of any Company, in each case entered into in the ordinary course of such Company’s business so long as such Leases do not, individually or in the aggregate, (i) interfere in any material respect with the ordinary conduct of the business of any Company or (ii) materially impair the use (for its intended purposes) or the value of the Property subject thereto;

(h)          Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Company in the ordinary course of business;

(i)          Liens securing Indebtedness incurred pursuant to Section 6.01(e) (or any refinancing or renewal thereof permitted under Section 6.01(m)),providedthat (i) any such Liens attach only to the Property being financed pursuant to such Indebtedness, (ii) do not encumber any other Property of any Company, other than accessions to such property and the proceeds and products thereof, or any lease of such property (including accessions thereto) and the proceeds and products thereof, and (iii) the principal amount of the Indebtedness secured by any such Lien shall not exceed the lesser of the Fair Market Value or the cost of the Property secured by such Lien; provided, further, that individual financings of equipment provided by one lender may be cross-collateralized to other financings of equipment provided by such lender;

(j)          Liens securing the obligations under the First Out Term Loan Documents (including Indebtedness incurred under Section 6.01(s)) so long as such obligations and liens are subject to the Intercreditor and Collateral Agency Agreement, and any liens securing any refinancing thereof pursuant to Section 6.01(m), so long as such refinancing and liens are subject to the Intercreditor and Collateral Agency Agreement;

(k)          bankers’ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by any Company, in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, securing amounts owing to such bank with respect to Cash Management Services; providedthat, unless such Liens are non-consensual and arise by operation of applicable Legal Requirements, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness;

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(l)          Liens existing on Property not owned by Borrower but to which Borrower holds a leasehold interest and such Liens attach to the fee interest, and/or at the time of its acquisition or existing on Property of a Person at the time such Person is acquired or merged with or into or amalgamated or consolidated with any Company to the extent permitted hereunder; provided that such Liens (i) do not extend to Property not subject to such Liens at the time of such acquisition, merger, consolidation or amalgamation (other than improvements thereon, replacements of such property and additions and accessions thereto, proceeds and products thereof and, in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender), (ii) are not created in anticipation or contemplation of such acquisition, merger, consolidation or amalgamation and (iii) do not secure Indebtedness in an aggregate principal amount exceeding $7,500,000 at any time outstanding;

(m)          Liens granted pursuant to the Security Documents to secure the Secured Obligations;

(n)          licenses of Intellectual Property granted by any Company in the ordinary course of business and not interfering in any material respect with the ordinary conduct of business of the Companies;

(o)          the filing of UCC or PPSA financing statements (or equivalent) solely as a precautionary measure in connection with operating leases or consignment of goods;

(p)          Liens of a collecting bank arising in the ordinary course of business under Section 4-208 of the UCC (or any equivalent provision of the UCC or PPSA) covering only the items being collected upon;

(q)          Liens granted by a Company in favor of a Loan Party in respect of Indebtedness owed by such Company to such Loan Party; providedthat such Indebtedness is (i) evidenced by the Intercompany Note and (ii) pledged by such Loan Party as Collateral pursuant to the Security Documents;

(r)          Liens on money or property constituting proceeds of any Indebtedness incurred to fund any acquisition of assets or Equity Interests, to the extent that such proceeds are held in escrow pending the closing of such acquisition, so long as such Indebtedness would be permitted by Section 6.01;

(s)          Liens solely on good faith earnest money deposits made in connection with any letter of intent or purchase agreement not prohibited hereunder;

(t)          Liens securing Indebtedness under Sections 6.01(d) and (f); provided that such Liens may be senior to the Liens securing the Secured Obligations pursuant to an intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent;

(u)          setoff rights or banker’s liens for account charges and fees against funds on deposit with such banks;

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(v)          Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;

(w)          Liens that are junior in priority to the Liens securing the Obligations, securing Indebtedness incurred under Section 6.01(t) in an aggregate outstanding principal amount not to exceed $50,0000,000, so long as (i) the Total Net Leverage Ratio does not exceed the Incurrence Leverage Level, (ii) such Indebtedness is not incurred prior to September 30, 2020, (iii) no Default or Event of Default exists before and immediately after the incurrence of such Indebtedness, (iv) there is no obligor in respect of such Indebtedness that is not a Loan Party, (v) the Administrative Agent, the Loan Parties and the holders of such Indebtedness (or the Agent authorized to act for such holders) have entered into an intercreditor agreement in form and substance reasonably satisfactory to the Required Lenders and (vi) Borrower shall have delivered an Officers’ Certificate to the Administrative Agent certifying as to compliance with the foregoing requirements in clauses (i)-(iv);

(x)          Liens on insurance policies and the proceeds thereof securing insurance premium financing not prohibited hereunder;

(y)          Liens securing Indebtedness incurred pursuant to Section 6.01(l) in an aggregate principal amount at any time outstanding not to exceed $5,000,000;

(z)         other Liens (other than Liens securing Indebtedness incurred pursuant to Section 6.01(l)) with respect to the Property or assets of any Company as to which the aggregate amount at any time outstanding of all obligations secured thereby does not exceed $10,000,000;

(aa)        Liens (i) on the fee interest in Real Property leased by Borrower or any Subsidiary and (ii) on or consisting of any deposits with respect to any property leased by Borrower or any Subsidiary; and

(bb)       Liens that are contractual rights of setoff relating to (i) pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Borrower and its Subsidiaries, or (ii) purchase orders and other agreements entered into with customers of Borrower or any Subsidiary thereof in the ordinary course of business.

Any reference in any of the Loan Documents to a Permitted Lien is not intended to subordinate or postpone, and shall not be interpreted as subordinating or postponing, or as any agreement to subordinate or postpone, any Lien created by any of the Loan Documents to any Permitted Lien.

Section 6.03          Reserved.

Section 6.04        Investments, Loans and Advances.  Directly or indirectly, lend money or credit (by way of guarantee, assumption of debt or otherwise) or make advances to any Person, or purchase or acquire any stock, bonds, notes, debentures or other obligations or securities of, or any other interest in, or make any capital contribution to, any other Person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of a futures contract (all of the foregoing, collectively, “Investments”), except that the following shall be permitted:

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(a)          Investments outstanding on the Closing Date;

(b)         the Companies may (i) acquire and hold accounts receivables owing to any of them if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms, (ii) invest in, acquire and hold cash and Cash Equivalents, (iii) endorse negotiable instruments held for collection in the ordinary course of business or (iv) make lease, utility and other similar deposits in the ordinary course of business;

(c)          Hedging Obligations permitted pursuant to Section 6.01(c);

(d)         loans and advances to directors, employees and officers of Borrower and the Subsidiaries for bona fide business purposes, in an aggregate amount not to exceed $2,000,000 at any time outstanding (calculated without regard to write-downs or write-offs thereof); providedthat no loans in violation of Section 402 of the Sarbanes-Oxley Act shall be permitted hereunder;

(e)          Investments by (i) Borrower in any Guarantor, (ii) any Company in Borrower or any Guarantor, and (iii) a Subsidiary of Borrower that is not a Guarantor in any other Subsidiary of Borrower that is not a Guarantor; providedthat any Investment in the form of a loan or advance shall be evidenced by the Intercompany Note and, in the case of a loan or advance by a Loan Party, pledged by such Loan Party as Collateral pursuant to the Security Documents;

(f)          Investments in securities of trade creditors or customers in the ordinary course of business that are received in settlement of bona fide disputes or pursuant to any plan of reorganization or liquidation or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers;

(g)          Investments consisting of Borrower’s receipt of cash receipts on behalf of Foreign Subsidiaries and the provision of cash disbursements to Foreign Subsidiaries, in each case, in the ordinary course of business consistent with past practice;

(h)         Investments of any Person that becomes a Subsidiary on or after the date hereof; provided that (i) such Investments exist at the time such Person is acquired, (ii) such Investments are not made in anticipation or contemplation of such Person becoming a Subsidiary, and (iii) such Investments are not directly or indirectly recourse to any of the Companies or any of their respective assets, other than to the Person that becomes a Subsidiary;

(i)           other Investments in an aggregate amount not to exceed $12,500,000 at any time outstanding; provided, however, that Investments in any Subsidiary that is not a Loan Party shall not exceed $1,000,000 at any time outstanding;

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(j)           Investments consisting of prepayments to suppliers or extensions of trade credit, in each case in the ordinary course of business;

(k)          advances of payroll to employees in the ordinary course of business;

(l)          Investments in an aggregate amount outstanding not to exceed the Cumulative Credit Availability as of the time such Investments were made; provided that Borrower shall have delivered an Officers’ Certificate to the Administrative Agent certifying as to compliance with the foregoing; and

(m)          payments of expenses of any Employee Benefit Plan in anticipation of reimbursement of said expenses by the Employee Benefit Plan.

For purposes of covenant compliance, the amount of any Investment at any time shall be the amount actually invested (measured as of the time made), without adjustment for subsequent changes in the value of such Investment, net of all returns on such Investment up to the original amount of such Investment.

Section 6.05         Mergers and Consolidations.  Wind up, liquidate or dissolve its affairs or enter into any transaction of merger, consolidation or amalgamation with respect to any of the Subsidiaries, except that:

(a)          any solvent Company (other than Borrower) may merge, consolidate or amalgamate with or into Borrower or any Guarantor (as long as Borrower or a Guarantor is the surviving Person in such merger, consolidation or amalgamation and, in the case of any Guarantor, remains a Wholly Owned Subsidiary of Borrower); provided that the Lien on and security interest in such Property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of Section 5.11 or 5.12, as applicable; and

(b)          any Subsidiary of Borrower that is not a Guarantor may merge, consolidate or amalgamate with or into any other Subsidiary of Borrower that is not a Guarantor.

To the extent the requisite Lenders under Section 10.02(b) waive the provisions of this Section 6.05 with respect to the sale of any Collateral, or any Collateral is sold or otherwise disposed of as permitted by this Section 6.05, such Collateral (unless sold or otherwise disposed of to a Company or any Affiliate thereof), but not the proceeds thereof, shall be sold free and clear of the Liens created by the Security Documents, and, so long as Borrower shall have previously provided to the Collateral Agent and the Administrative Agent such certifications or documents as the Collateral Agent and/or the Administrative Agent shall reasonably request in order to demonstrate compliance with this Section 6.05, the Collateral Agent shall take all actions it deems appropriate in order to effect the foregoing.

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Section 6.06        Asset Sales.  Effect any Disposition of any Property, except that the following shall be permitted:

(a)          Dispositions of obsolete, worn out, surplus or damaged Property by Borrower or any of its Subsidiaries in the ordinary course of business that is, in the reasonable good faith judgment of Borrower, no longer economically practicable to maintain or useful or used in the conduct of the business of the Companies taken as a whole;

(b)          if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing or would result therefrom, the liquidation or dissolution or change in form of entity of any Subsidiary if Borrower determines in good faith that such liquidation, dissolution or change in form is in the best interests of Borrower, is not disadvantageous to the Lenders and in connection with any such liquidation, dissolution or change in form, Borrower transfers any assets of such Subsidiary to a Loan Party and complies with the requirements of Section 5.11 and Section 5.12, if any;

(c)          (i) leases and subleases (and licenses and sublicenses) of real or personal Property and (ii) any license, sublicense or other grant of rights in or to any trademark, copyright, patent or other Intellectual Property, in each case of subclauses (i) and (ii), in the ordinary course of business and in accordance with the applicable Security Documents;

(d)          Investments in compliance with Section 6.04;

(e)          mergers, consolidations and amalgamations in compliance with Section 6.05;

(f)          Dividends in compliance with Section 6.08;

(g)          sales of inventory and equipment held for sale in the ordinary course of business and Dispositions of cash and Cash Equivalents in the ordinary course of business;

(h)          any Disposition of Property that constitutes a Casualty Event;

(i)           any Disposition of Property by any Subsidiary of Borrower to Borrower or any of its Subsidiaries; providedthat if the transferor of such Property is a Guarantor, the transferee thereof must be Borrower or a Guarantor;

(j)           the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any Intellectual Property that is not material to the business of Borrower and its Subsidiaries, taken as a whole;

(k)          Dispositions consisting of Liens permitted by Section 6.02;

(l)           the Specified Dispositions;

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(m)         Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

(n)          the unwinding of any Hedging Agreement; and

(o)          the sale or other disposition by Borrower or a Subsidiary of shares of capital stock of any of its Foreign Subsidiaries in order to qualify members of the governing body of such Foreign Subsidiary if and to the extent required by applicable Legal Requirements.

To the extent the requisite Lenders under Section 10.02(b) waive the provisions of this Section 6.06, with respect to the sale of any Collateral, or any Collateral is sold or otherwise disposed of as permitted by this Section 6.06, such Collateral (unless sold or otherwise disposed of to a Company or any Affiliate thereof), but not the proceeds thereof, shall be sold free and clear of the Liens created by the Security Documents, and, so long as Borrower shall have previously provided to the Collateral Agent and the Administrative Agent such certifications or documents as the Collateral Agent and/or the Administrative Agent shall reasonably request in order to demonstrate compliance with this Section 6.06, the Collateral Agent shall take all actions it deems appropriate in order to effect the foregoing.

Section 6.07        [Reserved].

Section 6.08        Dividends.  Declare or pay, directly or indirectly, any Dividends with respect to any Company (including pursuant to any Synthetic Purchase Agreement), except that the following shall be permitted:

(a)          (i) Dividends by any Company that is a Wholly Owned Subsidiary of Borrower to Borrower or any Guarantor that is a Wholly Owned Subsidiary of Borrower shall be permitted and (ii) Dividends by any Company that is a non-Wholly Owned Subsidiary of Borrower to its equity holders generally, so long as Borrower or its respective Subsidiary which owns the capital stock in the Subsidiary paying such Dividends receives at least its proportionate share thereof (based upon the relative holding of the capital stock in the Subsidiary paying such Dividends);

(b)          so long as no Default or Event of Default exists and is continuing, additional Dividends in an aggregate amount not to exceed $1,000,000 during the life of this Agreement;

(c)          repurchases of Qualified Capital Stock of Borrower deemed to occur upon exercise of stock options or warrants or similar rights if such Qualified Capital Stock represents a portion of the exercise price of such options or warrants or similar rights (as long as Borrower and its Subsidiaries make no payment in connection therewith that is not otherwise permitted hereunder);

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(d)          payments by Borrower to repurchase or redeem Qualified Capital Stock of Borrower held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of any Company, upon their death, disability, retirement, severance or termination of employment or service; provided that the aggregate amount of payments to Borrower shall not exceed, in any period of 12 consecutive months, $2,000,000 (the “Annual Redemption Basket”), plus the aggregate amount of net cash proceeds from the issuance of Qualified Capital Stock of Borrower that have not otherwise been used, the net cash proceeds of capital contributions to Borrower that have not otherwise been used and the net cash proceeds of any key man life insurance policy covering the applicable director, officer or employee received by Borrower during such 12 consecutive month period that have not otherwise been used; provided that 50% of the unused amount of the Annual Redemption Basket shall increase the Annual Redemption Basket by such amount for the next succeeding period of 12 consecutive months, but not any additional periods of 12 consecutive months (with any payments made under this Section 6.08(b) being allocated last to any carry-over amounts); provided, further, that the aggregate amount of payments pursuant to this clause (c) shall not exceed $6,000,000 during the life of this Agreement; and

(e)          so long as no Default or Event of Default exists and is continuing, Dividends payable after September 30, 2020 in an aggregate amount outstanding not to exceed the Cumulative Credit Availability so long as the Total Net Leverage Ratio does not exceed 2.75:1.00 at the same time that such Dividend is made after giving effect to the payment thereof; provided that Borrower shall have delivered an Officers’ Certificate to the Administrative Agent certifying as to compliance with the foregoing.

Section 6.09        Transactions with Affiliates.  Enter into, directly or indirectly, any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate of any Company (other than (x) between or among the Loan Parties, (y) between and among the Companies that are not Loan Parties or (z) between and among the Companies so long as such transactions do not exceed $5,000,000 in the aggregate to the Loan Parties during the life of this Agreement), other than on terms and conditions, taken as a whole, at least as favorable to such Company as would reasonably be obtained by such Company at that time in a comparable arm’s-length transaction with a Person other than an Affiliate, except that the following shall be permitted:

(a)          Dividends permitted by Section 6.08;

(b)          Investments permitted by Sections 6.04(d), (e) and (g);

(c)          reasonable and customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit plans) and indemnification arrangements, or severance arrangements, in each case approved by the Board of Directors of the applicable Company; and

(d)          transactions between Borrower or any Subsidiaries and any Person that would constitute a transaction with an Affiliate solely because a director of such Person is also a director of Borrower; provided, however, that such director abstains from voting as a director of Borrower on any matter involving such other Person.

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Section 6.10        Maximum Total Net Leverage Ratio.  Permit the Total Net Leverage Ratio, as of the last day of any Test Period set forth in the table below, to exceed the ratio set forth opposite such Test Period in the table below:

Test Period End Date	Total Net Leverage Ratio
September 30, 2020 and thereafter	applicable Projected Total Net Leverage Ratio for applicable Test Period End Date

Section 6.11         Prepayments of Other Indebtedness; Modifications of Organizational Documents, Acquisition and Certain Other Documents, etc.  Directly or indirectly:

(a)          (including pursuant to any Synthetic Purchase Agreement) make or offer to make (or give any notice in respect thereof) any voluntary or optional payment or prepayment on or redemption, retirement, defeasance, or acquisition for value of, or any prepayment or redemption as a result of any asset sale, change of control or similar event of, unsecured Indebtedness, Indebtedness secured by a Lien that is junior to the Liens securing the Obligations, any Indebtedness outstanding under any Subordinated Indebtedness or any Disqualified Capital Stock; provided that so long as no Default or Event of Default exists and is continuing, Borrower and its Subsidiaries may, after September 30, 2020, make payments of unsecured Indebtedness, Indebtedness secured by a Lien that is junior to the Liens securing the Obligations and Subordinated Indebtedness in an aggregate amount not to exceed $10,000,000 so long as the Total Net Leverage Ratio does not exceed 2.75:1.00 at the time of such prepayment after giving effect thereto;provided that Borrower shall have delivered an Officers’ Certificate to the Administrative Agent certifying as to compliance with the foregoing;

(b)          (i) waive, amend, supplement or modify, or permit the waiver, amendment, supplementation or modification of, any provision of any Indebtedness in the outstanding principal amount of $10,000,000 or more (other than any First Out Term Loan Documents) or Disqualified Capital Stock in any manner that is, or could reasonably be expected to be, adverse in any material respect to the interests of any Agent or Lender, and (ii) waive, amend, supplement or modify or permit the waiver, amendment, supplementation or modification of any First Out Term Loan Documents (other than to the extent permitted in the Intercreditor and Collateral Agency Agreement) or Disqualified Capital Stock in any manner that is, or could reasonably be expected to be, adverse in any material respect to the interests of any Agent or Lender; or

(c)          except as otherwise permitted or required by the Security Agreement, terminate, amend, waive, modify (including electing to treat any Pledged Interests (as defined in the Security Agreement) as a “security” under Section 8-103 of the UCC) or change any of its Organizational Documents (including by the filing or modification of any certificate of designation) or any agreement to which it is a party with respect to its Equity Interests (including any stockholders’ agreement), or enter into any new agreement with respect to its Equity Interests, other than any such terminations, amendments, waivers, modifications or changes or such new agreements which are not, and could not reasonably be expected to be, adverse in any material respect to the interests of any Agent or the Lenders.

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Section 6.12        Limitation on Certain Restrictions on Subsidiaries.  Directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance, restriction or condition on the ability of any Subsidiary to (i) pay Dividends or make any other distributions on its Equity Interests or any other interest or participation in its profits owned by any Company, or pay any Indebtedness owed to any Company, (ii) make loans or advances to any Company or (iii) transfer any of its properties to any Company, except for such encumbrances, restrictions or conditions existing under or by reason of:

(a)          applicable mandatory Legal Requirements;

(b)          this Agreement and the other Loan Documents and the First Out Term Loan Credit Agreement and the other First Out Term Loan Documents;

(c)          customary provisions restricting subletting or assignment of any lease governing a leasehold interest of a Subsidiary;

(d)          customary provisions restricting assignment of any agreement entered into by a Subsidiary in the ordinary course of business;

(e)          customary restrictions and conditions contained in any agreement relating to the sale or other Disposition of any Property pending the consummation of such sale; providedthat (i) such restrictions and conditions apply only to the Property to be sold, and (ii) such sale or other Disposition is permitted hereunder;

(f)          any limitation pursuant to an agreement as in effect on the Closing Date; providedthat such agreement was not entered into in contemplation of the Closing Date;

(g)          any agreement in effect at the time any Subsidiary becomes a Subsidiary of Borrower or any agreement assumed by Borrower or a Subsidiary thereof in connection with an acquisition of assets by Borrower or such Subsidiary that is not prohibited hereunder; providedthat such agreement was not entered into in contemplation of such Person becoming a Subsidiary of Borrower or in contemplation of such acquisition and, in the case of a Subsidiary becoming a Subsidiary, the restriction or condition does not apply to Borrower or any other Subsidiary;

(h)          customary limitations on the disposition or distribution of assets or property (including, without limitation, Equity Interests) in joint venture agreements, asset sale agreements, options, sale-leaseback agreements, stock sale agreements, lease agreements, licenses and other similar agreements, which limitation is applicable only to the assets that are the subject of such agreements;

(i)          restrictions contained in Capital Leases or agreements relating to Purchase Money Obligations, which restrictions are applicable only to the property so purchased or leased;

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(j)          customary net worth provisions contained in real property leases, subleases, licenses or permits entered into by Borrower or any of its Subsidiaries, so long as such net worth provisions would not reasonably be expected to impair materially the ability of the Loan Parties to meet their ongoing obligations under the Loan Documents;

(k)          provisions in any agreements in respect of the Indebtedness described in Sections 6.01(d) and (f);

(l)          customary restrictions in agreements evidencing, governing, guaranteeing or securing Indebtedness permitted under Section 6.01 that is incurred or assumed by Subsidiaries that are not Loan Parties to the extent such restrictions or conditions are no more restrictive in any material respect than the restrictions and conditions in the Loan Documents;

(m)         provisions in the agreements entered into in respect of the Indebtedness permitted under Section 6.01(d) and (f).

(n)          customary subordination of subrogation, contribution and similar claims contained in guaranties permitted hereunder;

(o)          subordination of intercompany obligations, to the extent required by this Agreement or other Indebtedness permitted by Section 6.01; or

(p)          any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (a) through (m) above, provided, however, that the applicable provisions of such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing are not, taken as a whole, materially more restrictive than those prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.

Section 6.13        Limitation on Issuance of Capital Stock.

(a)          With respect to Borrower, issue any Equity Interest that is Disqualified Capital Stock.

(b)          With respect to any Subsidiary of Borrower, issue any Equity Interest (including by way of sales of treasury stock) or any options or warrants to purchase, or securities convertible into, any Equity Interest.

Section 6.14        Business.  Engage (directly or indirectly) in any businesses other than those businesses in which Borrower and its Subsidiaries are engaged on the Closing Date substantially as conducted on the Closing Date.

Section 6.15       Limitation on Accounting Changes.  Make or permit, any change in accounting policies or reporting practices, without the consent of the Required Lenders, which consent shall not be unreasonably withheld, conditioned or delayed, except (a) changes that are required or permitted by GAAP or (b) to implement IFRS (in each case of clauses (a) and (b), subject in each case to the provisions of Section 1.04).

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Section 6.16        Fiscal Periods.  Change its fiscal year-end and fiscal quarter-ends to dates other than December 31 and the last day of each March, June, September and December, respectively.

Section 6.17        No Further Negative Pledge.  Enter into any agreement, instrument, deed or lease which prohibits or limits the ability of any Company to create, incur, assume or suffer to exist any Lien upon any of its properties or revenues to secure the Secured Obligations, whether now owned or hereafter acquired, or which requires the grant of any Lien for an obligation if security is granted for another obligation, except the following:  (a) this Agreement and the other Loan Documents; (b) covenants in documents creating Liens permitted by Section 6.02 prohibiting further Liens on the properties encumbered thereby; (c) any prohibition or limitation that (i) exists pursuant to applicable Legal Requirements, or (ii) consists of customary restrictions and conditions contained in any agreement relating to the Disposition of any Property pending the consummation of such Disposition; provided that (1) such restrictions apply only to the Property to be sold and such sale is permitted hereunder, and (2) such Disposition is permitted hereunder, or (iii) restricts subletting or assignment of any lease governing a leasehold interest of Borrower or any of its Subsidiaries; (d) the First Out Term Loan Documents, (e) any agreements governing Indebtedness described in Sections 6.01(d) and (f) and (e) agreements, instruments, deeds or leases described in clauses (a) through (n) of Section 6.12.

Section 6.18        Anti-Terrorism Law; Anti-Money Laundering.

(a)         Directly or indirectly, (i) conduct any business or engage in making or receiving any contribution of funds, goods or services to or for the benefit of any Person described in Section 3.21 or any Sanctioned Country, (ii) deal in, or otherwise engage in any transaction relating to, any Property or interests in Property blocked pursuant to the Executive Order or any other Anti-Terrorism Law, Canadian Anti-Terrorism Law or Sanctions Law, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law, Canadian Anti-Terrorism Law or Sanctions Law (and the Loan Parties shall deliver to the Lenders any certification or other evidence requested from time to time by any Lender in its reasonable discretion, confirming the Companies’ compliance with this Section 6.18).

(b)          Cause or permit any of the funds of such Loan Party that are used to repay the Obligations to be derived from any unlawful activity with the result that the Credit Events would be in violation of Legal Requirements.

Section 6.19        Embargoed Person.  Directly or indirectly (a) cause or permit any of the funds or properties of the Loan Parties that are used to repay the Loans or other Obligations to constitute Property of, or be beneficially owned directly or indirectly by, any Embargoed Person, (b) cause or permit any Embargoed Person to have any direct or indirect interest, of any nature whatsoever in the Loan Parties, with the result that the investment in the Loan Parties (whether directly or indirectly) is prohibited by applicable Legal Requirements or the Credit Events are in violation of applicable Legal Requirements, or (c) cause or permit any Company to conduct any business or engage in any action that is in violation of any Sanctions Law or any Canadian Sanctions.

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Section 6.20       Compliance with Canadian Pension Plans.  Directly or indirectly (a) establish any new defined benefit Canadian Pension Plan, (b) permit its unfunded pension fund and other employee benefit plan obligation and liabilities to remain unfunded other than in accordance with applicable law, or (c) terminate or wind-up any defined benefit Canadian Pension Plan, except as otherwise permitted under Section 5.06(b).

ARTICLE VII

GUARANTEE

Section 7.01        The Guarantee.  The Guarantors hereby, jointly and severally, guarantee, as primary obligors and not as sureties, to each Secured Party and their respective successors and assigns, the prompt payment and performance in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of, and premium and interest (including any interest, fees, costs or charges that would accrue but for the provisions of the Bankruptcy Code after any bankruptcy or insolvency petition under the Bankruptcy Code) on the Loans made by the Lenders to, and the Notes held by each Lender of, Borrower, and all other Secured Obligations from time to time owing to the Secured Parties by any Loan Party in each case strictly in accordance with the terms thereof (such obligations being herein collectively called the “Guaranteed Obligations”).  The Guarantors hereby jointly and severally agree that if Borrower or any other Guarantor(s) shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the Guarantors will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.

Section 7.02        Obligations Unconditional.  The obligations of the Guarantors under Section 7.01 shall constitute a guaranty of payment and performance and not of collection and to the fullest extent permitted by applicable Legal Requirements, are primary, absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations under this Agreement, the Notes, if any, or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Guarantor (except for payment in full of the Guaranteed Obligations with respect to the Secured Obligations set forth in clauses (a) and (b) of the definition thereof).  Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantors hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described above:

(a)          at any time or from time to time, without notice to the Guarantors, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;

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(b)          any of the acts mentioned in any of the provisions of this Agreement, the other Loan Documents or the Notes, if any, or any other agreement or instrument referred to herein or therein shall be done or omitted;

(c)          the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be amended in any respect, or any right under the Loan Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or exchanged in whole or in part or otherwise dealt with;

(d)          any Lien or security interest granted to, or in favor of, any Secured Party as security for any of the Guaranteed Obligations shall fail to be valid, perfected or to have the priority required under the Loan Documents; or

(e)          the release of any other Guarantor pursuant to Section 7.10.

(f)          The Guarantors hereby expressly waive, to the fullest extent permitted by applicable Legal Requirements, diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that any Secured Party exhaust any right, power or remedy or proceed against Borrower or any Guarantor under this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations.  The Guarantors waive, to the fullest extent permitted by applicable Legal Requirements, any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of the Guaranteed Obligations, notice of acceleration, notice of intent to accelerate and notice of or proof of reliance by any Secured Party upon this Guarantee or acceptance of this Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between Borrower and the Secured Parties shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guarantee.  The Guarantors waive, to the fullest extent permitted by applicable Legal Requirements, any right to which it may be entitled to be released from its obligations hereunder pursuant to Article 2362 of the Civil Code of Quebec, and any rights to the benefits of Article 2363 of the Civil Code of Quebec, such that its obligations created herein are not attached to the performance of any special duties.  This Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment and performance without regard to any right of offset with respect to the Guaranteed Obligations at any time or from time to time held by the Secured Parties, and the obligations and liabilities of the Guarantors hereunder shall be primary and shall not be conditioned or contingent upon the pursuit by the Secured Parties or any other Person at any time of any right or remedy against Borrower or against any other Person which may be or become liable in respect of all or any part of the Guaranteed Obligations or against any collateral security or guarantee therefor or right of offset with respect thereto.  The Guarantors hereby expressly waive and renounce to the benefits of division and discussion and Article 2353 of the Civil Code of Quebec.  This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon the Guarantors and their respective successors and assigns, and shall inure to the benefit of the Secured Parties, and their respective successors and assigns, notwithstanding that from time to time during the term of this Agreement there may be no Guaranteed Obligations outstanding.

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Section 7.03        Reinstatement.  The obligations of the Guarantors under this Article VII shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of Borrower or other Loan Party in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise.

Section 7.04       Subrogation; Subordination.  Each Guarantor hereby agrees that until the payment and satisfaction in full in cash of all Guaranteed Obligations (other than (i) contingent reimbursement and indemnification obligations that are not then due and payable and (ii) Guaranteed Obligations constituting Secured Obligations of the types specified in clause (b) and (c) of the definition of Secured Obligations), and the expiration and termination of the Commitments of the Lenders under this Agreement it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its Guarantee in this Article VII, whether by subrogation or otherwise, against Borrower or any other Guarantor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations.  Any Indebtedness of any Loan Party permitted pursuant to Section 6.04(e) shall be subordinated to such Loan Party’s Secured Obligations in the manner set forth in the Intercompany Note evidencing such Indebtedness.

Section 7.05       Remedies.  The Guarantors jointly and severally agree that, as between the Guarantors and the Lenders, the Obligations of Borrower under this Agreement and other Loan Documents may be declared to be forthwith due and payable as provided in Article VIII (and shall be deemed to have become automatically due and payable in the circumstances provided in Article VIII) for purposes of Section 7.01, notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by Borrower) shall forthwith become due and payable by the Guarantors for purposes of Section 7.01.

Section 7.06        Instrument for the Payment of Money.  Each Guarantor hereby acknowledges that the Guarantee in this Article VII constitutes an instrument for the payment of money, and consents and agrees that any Lender or Agent, at its sole option, in the event of a dispute by such Guarantor in the payment of any moneys due hereunder, shall have the right to bring a motion-action under New York CPLR Section 3213.

Section 7.07        Continuing Guarantee.  The Guarantee in this Article VII is a continuing guarantee of payment and performance, and shall apply to all Guaranteed Obligations whenever arising.

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Section 7.08       General Limitation on Guarantee Obligations.  In any action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency or reorganization law or other Legal Requirement affecting the rights of creditors generally, if the obligations of any Guarantor under Section 7.01 would otherwise be held or determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 7.01, then, notwithstanding any other provision to the contrary, the amount of such liability shall, without any further action by such Guarantor, any other Loan Party or any other Person, be automatically limited and reduced to the highest amount (after giving effect to the rights of subrogation and contribution established in Sections 7.04 and 7.10, respectively) that is valid and enforceable, not void or voidable and not subordinated to the claims of other creditors as determined in such action or proceeding.

Section 7.09       Right of Contribution.  Each Guarantor hereby agrees that to the extent that a Guarantor shall have paid more than its proportionate share of any payment made hereunder, such Guarantor shall be entitled to seek and receive contribution from and against any other Guarantor hereunder which has not paid its proportionate share of such payment.  Each Guarantor’s right of contribution shall be subject to the terms and conditions of Section 7.04.  The provisions of this Section 7.10 shall in no respect limit the obligations and liabilities of any Guarantor to the Administrative Agent and the Lenders, and each Guarantor shall remain liable to the Administrative Agent and the Lenders for the full amount guaranteed by such Guarantor hereunder.

Section 7.10       Release of Guarantors. If, in compliance with the terms and provisions of the Loan Documents, (i) all of the Equity Interests or (ii) all or substantially all of the Property of any Guarantor are sold or otherwise transferred (a “Transferred Guarantor”) to a Person or Persons (other than any Company or any Affiliate thereof), such Transferred Guarantor shall, upon the consummation of such sale or transfer, be automatically released from its Obligations under this Agreement (including under Section 10.03) and its Obligations to pledge and grant any Collateral owned by it pursuant to any Security Document and, in the case of the sale or other disposition of all of the Equity Interests of the Transferred Guarantor, the pledge of such Equity Interests to the Collateral Agent pursuant to the Security Documents shall be automatically released, and, so long as Borrower shall have previously provided the Collateral Agent and the Administrative Agent such certifications or documents the Collateral Agent and/or the Administrative Agent as shall reasonably request, the Collateral Agent shall take, and the Lenders hereby irrevocably authorize the Collateral Agent to take, such actions as are necessary to effect each release described in this Section 7.10 in accordance with the relevant provisions of the Security Documents, all at the sole cost and expense of Borrower.

ARTICLE VIII

EVENTS OF DEFAULT

Section 8.01        Events of Default.  Upon the occurrence and during the continuance of any of the following events (each, an “Event of Default”):

(a)          default shall be made in the payment of any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for repayment thereof or by acceleration thereof or otherwise

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(b)          default shall be made in the payment of any interest on any Loan or any Fee or any other amount (other than an amount referred to in paragraph (a) above) due under any Loan Document, when and as the same shall become due and payable, whether at the due date thereof (including an Interest Payment Date) or at a date fixed for prepayment (whether optional or mandatory) or by acceleration or demand thereof or otherwise, and such default shall continue unremedied for a period of three (3) Business Days;

(c)         any representation or warranty made or deemed made in or in connection with any Loan Document or the borrowings of Loans, or any representation, warranty, statement or information contained in any report, certificate, financial statement or other instrument furnished in connection with or pursuant to any Loan Document, shall prove to have been false or misleading in any material respect (or in any respect, in the case of any representation or warranty that is (x) qualified as to “materiality”, “Material Adverse Effect” or similar language or (y) made pursuant to Section 3.21) when so made, deemed made or furnished;

(d)          default shall be made in the due observance or performance by any Company of any covenant, condition or agreement contained in Section 5.01, 5.02, 5.03(a), 5.08, 5.10, 5.11, 5.13, 5.17 or in Article VI;

(e)          default shall be made in the due observance or performance by any Company of any covenant, condition or agreement contained in any Loan Document (other than those specified in paragraphs (a), (b) or (d) immediately above) and such default shall continue unremedied or shall not be waived for a period of 20 days (or three (3) Business Days in the case of the Fee Letter) after the occurrence thereof;

(f)          any Company shall (i) fail to pay any principal or interest, regardless of amount, due in respect of the First Out Term Loan Facility or any other Indebtedness (the “Other Indebtedness”) (other than the Obligations), when and as the same shall become due and payable beyond any applicable grace period, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained in any agreement or instrument evidencing or governing the First Out Term Loan Facility or such Other Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such Indebtedness or a trustee or other representative on its or their behalf (with or without the giving of notice, the lapse of time or both) to cause, such Indebtedness to become due before its stated maturity or become subject to a mandatory offer to purchase by the obligor; provided that with respect to any Other Indebtedness it shall not constitute an Event of Default pursuant to this paragraph (f) unless the aggregate amount of all such Other Indebtedness referred to in clauses (i) and (ii) exceeds $20,000,000 at any one time;

(g)         an Insolvency Proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of any Company or any of their respective Subsidiaries (other than an Immaterial Subsidiary) or of a substantial part of the Property of any Company or any of their respective Subsidiaries (other than an Immaterial Subsidiary), under any Insolvency Laws, (ii) the appointment of a receiver, receiver and manager, interim receiver, trustee, custodian, sequestrator, conservator, liquidator, rehabilitator or similar official for any Company (other than an Immaterial Subsidiary) or for a substantial part of the Property of any Company (other than an Immaterial Subsidiary), or (iii) the winding-up or liquidation of any Company (other than an Immaterial Subsidiary); and such proceeding or petition shall continue undismissed for sixty (60) days or an Order approving or ordering any of the foregoing shall be entered;

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(h)          any Company or any of their respective Subsidiaries (other than an Immaterial Subsidiary) shall (i) voluntarily commence any proceeding or file any petition seeking relief any Insolvency Laws, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any Insolvency Proceeding or the filing of any petition described in clause (g) above, (iii) apply for or consent to the appointment of a receiver, receiver and manager, interim receiver, trustee, custodian, sequestrator, conservator, liquidator, rehabilitator or similar official for any Company (other than an Immaterial Subsidiary) or for a substantial part of the Property of any Company (other than an Immaterial Subsidiary), (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due, or (vii) wind up or liquidate;

(i)          one or more Orders for the payment of money in an aggregate amount in excess of $20,000,000 (to the extent not covered by insurance from an unaffiliated insurance company with an A.M.  Best financial strength rating of at least A-, it being understood that even if such amounts are covered by insurance from such an insurance company, such amounts shall count against such basket if responsibility for such amounts has been denied by such insurance company) shall be rendered against any Company or any combination thereof and the same shall remain undischarged, unvacated or unbonded for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon properties of any Company to enforce any such Order;

(j)          one or more ERISA Events or noncompliance or other events with respect to Canadian Pension Plans or Foreign Plans shall have occurred that, in the opinion of the Required Lenders, when taken together with all other such ERISA Events and noncompliance or other events with respect to Canadian Pension Plans or Foreign Plans that have occurred, could reasonably be expected to result in liability of any Company or any of its ERISA Affiliates in an aggregate amount exceeding $20,000,000 or the imposition of a Lien on any properties of a Company that is not a Permitted Lien;

(k)          any security interest and Lien purported to be created by any Security Document shall cease to be in full force and effect, or shall cease to give the Collateral Agent, for the benefit of the Secured Parties, the Liens, rights, powers and privileges purported to be created and granted under such Security Documents with respect to any material portion of the Collateral (including a valid, enforceable, perfected first priority security interest in and Lien on, such portion of the Collateral thereunder (except as otherwise expressly provided in this Agreement or such Security Document)) in favor of the Collateral Agent, or shall be asserted by or on behalf of any Company not to be, a valid, enforceable, perfected, first priority (except as otherwise expressly provided in this Agreement or such Security Document) security interest in or Lien on the Collateral (other than an immaterial portion) covered thereby; provided that it shall not be an Event of Default under this clause (k) if the Collateral Agent shall not have, or shall cease to have, a valid, enforceable and perfected first priority (except as expressly provided in this Agreement or the Security Documents) security interest in or Lien on any Collateral purported to be covered by the Security Documents to the extent that any such loss of perfection or intended priority results from the failure of the Collateral Agent to maintain possession of certificates or instruments actually delivered to it representing Collateral or to file UCC continuation statements;

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(l)          any material provision of any Loan Document, including the Intercreditor and Collateral Agency Agreement (or any Loan Document as a whole) shall at any time and for any reason be declared by a court of competent jurisdiction to be null and void, or a proceeding shall be commenced by or on behalf of any Loan Party or any other Person, or by any Governmental Authority, seeking to establish the invalidity or unenforceability thereof (exclusive of questions of interpretation of any provision thereof), or any Company (or, with respect to the Intercreditor and Collateral Agency Agreement, any First Out Term Loan Lender or the First Out Term Loan Administrative Agent) shall, directly or indirectly, repudiate, revoke, terminate or rescind (or purport to do any of the foregoing) or deny any portion of its liability or obligation for the Obligations, or with respect to the Intercreditor and Collateral Agency Agreement, its obligations thereunder;

(m)          there shall have occurred a Change in Control;

(n)          [reserved]; or

(o)          there shall have occurred the termination of, or the receipt by any Company of notice of the termination of, or the occurrence of any event or condition which would, with the passage of time or the giving of notice or both, constitute an event of default under or permit the termination of, any one or more Data Center Leases of any Company, provided that it shall not constitute an Event of Default pursuant to this paragraph (o): (i) unless the impact of the termination of any such affected Data Center Leases, individually or in the aggregate, reduces or could reasonably be expected to reduce the Consolidated EBITDA of Borrower and its Subsidiaries for the Test Period commencing from the first full fiscal quarter following any such termination by at least 15% below the amount it would have been had all such terminations not occurred or (ii) if the termination of such Data Center Lease occurs as a result of (A) the expiration of any such Data Center Lease on the stated expiration date or (B)  any Company terminating such Data Center Lease in accordance with its terms in the absence of any default thereunder by any party thereto;

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then, and in every such event (other than an event with respect to Borrower described in paragraph (g) or (h) above), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to Borrower, take any or all of the following actions, at the same or different times:  (i) declare the Loans then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Loan Parties accrued hereunder and under any other Loan Document, shall become forthwith due and payable, without presentment, demand, protest, notice of acceleration, notice of intent to accelerate or any other notice of any kind, all of which are hereby expressly waived by the Loan Parties (to the maximum extent permitted by applicable Legal Requirements), anything contained herein or in any other Loan Document or otherwise to the contrary notwithstanding; and (ii) exercise any and all of its other rights and remedies under applicable Legal Requirements, hereunder and under the other Loan Documents; and in any event with respect to Borrower described in paragraph (g) or (h) above, the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of the Loan Parties accrued hereunder and under any other Loan Document, shall automatically become due and payable, without presentment, demand, protest, notice of acceleration, notice of intent to accelerate or any other notice of any kind, all of which are hereby expressly waived by the Loan Parties (to the maximum extent permitted by applicable Legal Requirements), anything contained herein or in any other Loan Document or otherwise to the contrary notwithstanding.

In addition, without limiting the foregoing, in the event of a foreclosure (or other similar exercise of remedies) by Collateral Agent on any of the Collateral pursuant to a public or private sale or other Disposition, the Collateral Agent, the Administrative Agent or any Secured Party may be the purchaser of any or all of such Collateral at any such sale or other Disposition and, in addition, the Collateral Agent or the Administrative Agent, as agent for and representative of all of Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or other Disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by Collateral Agent at such sale.

Section 8.02        Rescission.  If at any time after termination of the Commitments or acceleration of the maturity of the Loans, the Loan Parties shall pay all arrears of interest and all payments on account of principal of the Loans owing by them that shall have become due otherwise than by acceleration (with interest on principal and, to the extent permitted by law, on overdue interest, at the rates specified herein) and all Defaults (other than non-payment of principal of and accrued interest on the Loans due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to Section 10.02, then upon the written consent of the Required Lenders (which may be given or withheld in their sole discretion) and written notice to Borrower, the termination of the Commitments or the acceleration and their consequences may be rescinded and annulled; but such action shall not affect any subsequent Default or Event of Default or impair any right or remedy consequent thereon.  The provisions of the preceding sentence are intended merely to bind the Lenders and the other Secured Parties to a decision that may be made at the election of the Required Lenders, and such provisions are not intended to benefit Borrower or any of the other Loan Parties and do not give Borrower and/or any of the Loan Parties the right to require the Lenders to rescind or annul any acceleration hereunder, even if the conditions set forth herein are met.

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Section 8.03        Reserved.

Section 8.04        Application of Proceeds.  The proceeds received by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Collateral pursuant to the exercise by the Collateral Agent of its remedies shall, subject to the Intercreditor and Collateral Agency Agreement and any other intercreditor agreement or similar arrangement with respect to the Obligations, be applied, in full or in part, together with any other sums then held by the Collateral Agent pursuant to this Agreement or any other Loan Document, promptly by the Collateral Agent as follows:

(a)         First, to the payment in full in cash of all costs and expenses, fees, commissions and taxes of such sale, collection or other realization (including compensation to the Collateral Agent, the Administrative Agent and their respective Related Person, and all expenses, liabilities and advances made or incurred by the Collateral Agent, the Administrative Agent and their respective Related Persons in connection therewith and all amounts for which the Collateral Agent and the Administrative Agent and their respective Related Persons is entitled to indemnification pursuant to the provisions of any Loan Document), together with interest on each such amount at the highest rate then in effect under this Agreement from and after the date such amount is due, owing or unpaid until paid in full;

(b)          Second, to the payment of the First Out Obligations ratably to the First Out Term Loan Lenders in accordance with the terms of the Intercreditor and Collateral Agency Agreement and the First Out Term Loan Credit Agreement;

(c)          Third, to the payment in full in cash of all other reasonable costs and expenses of such sale, collection or other realization (including compensation to the other Secured Parties and their agents and counsel and all costs, liabilities and advances made or incurred by the other Secured Parties in connection therewith), together with interest on each such amount at the highest rate then in effect under this Agreement from and after the date such amount is due, owing or unpaid until paid in full;

(d)          Fourth, without duplication of amounts applied pursuant to the clauses above, to the payment in full in cash, pro rata, of interest and other amounts (excluding principal) constituting Obligations in each case equally and ratably in accordance with the respective amounts thereof then due and owing;

(e)          Fifth, to the payment in full in cash of principal of the Loans, the Incremental Loans and the Other Loans, pro rata;

(f)           Sixth, to the payment in full in cash of the remaining Secured Obligations then due and owing, pro rata; and

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(g)          Seventh, the balance, if any, to the Person lawfully entitled thereto (including the applicable Loan Party or its successors or assigns) or as a court of competent jurisdiction may direct.

In the event that any such proceeds are insufficient to pay in full the items described in clauses (a) through (f) above, the Loan Parties shall remain liable, jointly and severally, for any deficiency.

ARTICLE IX

THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT

Section 9.01        Appointment.

(a)          Each Lender hereby irrevocably designates and appoints each of the Administrative Agent and the Collateral Agent as an agent of such Lender under this Agreement and the other Loan Documents and the Administrative Agent and the Collateral Agent hereby accept such designations and appointments.  Each Lender irrevocably authorizes each Agent, in such capacity, through its agents or employees, to take such actions on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are delegated to such Agent by the terms of this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto.  In furtherance of the foregoing, the Administrative Agent and the Collateral Agent and each of their Related Persons shall be entitled to request and receive written instructions from the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) prior to taking or not taking any actions under this Agreement and the other Loan Documents.  The provisions of this Article IX are solely for the benefit of the Agents and the Lenders, and except with respect to consent or consultation rights expressly set forth herein, and no Loan Party shall have rights as a third party beneficiary of any such provisions.  Without limiting the generality of the foregoing, the Agents are hereby expressly authorized to execute any and all documents (including releases) with respect to the Collateral and any rights of the Secured Parties with respect thereto as contemplated by and in accordance with the provisions of this Agreement and the other Loan Documents.  In performing its functions and duties hereunder, each Agent shall act solely as an agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Borrower or any of its Subsidiaries.  Without limiting the generality of the foregoing, the use of the term “agent” in this Agreement with reference to the Administrative Agent or the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter of market custom and is intended to create or reflect only an administrative relationship between independent contracting parties.  Without limiting the foregoing, each Lender hereby irrevocably appoints and authorizes the Administrative Agent and the Collateral Agent to enter into the Intercreditor and Collateral Agency Agreement and to take such actions and to exercise such powers under the Intercreditor and Collateral Agency Agreement as are delegated to Collateral Agent by the terms thereof, together with all such powers as are reasonably incidental thereto, and each Lender understands and agrees that Collateral Agent is also acting as collateral agent for the benefit of the other Secured Parties under the First Out Term Loan Documents. Each Lender hereby irrevocably appoints and authorizes Administrative Agent and Collateral Agent to enter into an intercreditor agreement with respect to the Indebtedness described in Sections 6.01(d) and (f) and to take such actions and to exercise such powers under the such intercreditor agreement as are delegated to the Administrative Agent and the Collateral Agent by the terms thereof, together with all such powers as are reasonably incidental thereto. Nothing in this Agreement shall require the Agents to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties or in the exercise of any of its rights or powers hereunder.

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(b)         Each Lender hereby irrevocably authorizes the Administrative Agent, based upon the instruction of the Required Lenders, to credit bid and purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral at any sale thereof conducted by Collateral Agent under the provisions of the UCC or PPSA, including pursuant to Sections 9-610 or 9-620 of the UCC (or any equivalent provision of the UCC or the PPSA), at any sale thereof conducted under the provisions of the Bankruptcy Code, including Section 363 of the Bankruptcy Code, or at any other sale or foreclosure (or similar exercise of remedies) conducted by Collateral Agent (whether by judicial action or otherwise) in accordance with applicable Legal Requirements.

(c)          Each Lender irrevocably appoints each other Lender as its agent and bailee for the purpose of perfecting Liens (whether pursuant to Section 8-301(a)(2) of the UCC or otherwise), for the benefit of the Secured Parties, in assets in which, in accordance with the UCC or any other applicable Legal Requirement a security interest can be perfected by possession or control.  Should any Lender (other than the Collateral Agent) obtain possession or control of any such Collateral, such Lender shall notify the Collateral Agent thereof, and, promptly following the Collateral Agent’s request therefor, shall deliver such Collateral to the Collateral Agent or otherwise deal with such Collateral in accordance with the Collateral Agent’s instructions.

Section 9.02        Agent in Its Individual Capacity.  Each Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as an Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, any Company or Affiliate thereof as if it were not an Agent hereunder and without duty to account therefor to the Lenders.

Section 9.03        Exculpatory Provisions.

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(a)          No Agent nor any of their respective Related Persons shall have any duties or obligations except those expressly set forth in the Loan Documents.  Without limiting the generality of the foregoing no Agent nor any of their respective Related Persons, (a) shall be subject to any fiduciary or other implied duties, covenants or obligations, regardless of whether a Default or Event of Default has occurred and is continuing, (b) shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02); provided that no Agent nor any of their respective Related Persons shall be required to take any action that, in its opinion or the opinion or advice of its counsel, may expose such Agent to liability, if the Agent or any of its Related Persons is not indemnified to its satisfaction (in its sole discretion), or that is contrary to any Loan Document or applicable Legal Requirements including, for the avoidance of doubt any action that may be in violation of the automatic stay under any Insolvency Law or that may effect a foreclosure (or similar exercise of remedies), modification or termination of Property of a Defaulting Lender under any Insolvency Laws, and (c) except as expressly set forth in the Loan Documents, no Agent shall have any duty to disclose or shall be liable for the failure to disclose, any information relating to any Company or any of its Affiliates that is communicated to or obtained by the Person serving as such Agent or any of its Affiliates in any capacity.  No Agent nor any of their respective Related Persons shall be liable for any action taken or not taken by it (including ordinary negligence) under this Agreement or under any other Loan Document or under any other document or instrument referred to or provided for herein or therein or in connection herewith or therewith (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as any Agent or any of their respective Related Persons shall believe in good faith shall be necessary, under the circumstances as provided in Section 10.02) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by a final and nonappealable judgment.  No Agent nor any of their respective Related Persons shall be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof describing such Default or Event of Default is given to such Agent by Borrower or a Lender, and no Agent nor any of their respective Related Persons shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered 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 in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document.  Each party to this Agreement acknowledges and agrees that the Administrative Agent may from time to time use one or more outside service providers for the tracking of all UCC financing statements (and/or other collateral related filings and registrations from time to time) required to be filed or recorded pursuant to the Loan Documents and the notification to the Administrative Agent, of, among other things, the upcoming lapse or expiration thereof, and that each of such service providers will be deemed to be acting at the request and on behalf of Borrower and the other Loan Parties.  No Agent nor any of their respective Related Persons shall be liable for any action taken or not taken by any such service provider.

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(b)         No Agent nor any of their respective Related Persons shall be (i) responsible or liable for any failure or delay in the performance of its obligations under this Agreement or the other Loan Documents arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; pandemics, riots; business interruptions; loss or malfunctions of utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority and governmental action; (ii) (A) required to qualify in any jurisdiction in which it is not presently qualified to perform its obligations as Agent or (B) required to take any enforcement action against a Loan Party or any other obligor outside of the United States; (iii) responsible for, nor chargeable with, knowledge of the terms and conditions of any other agreement, instrument, or document other than this Agreement and any other Loan Document to which Administrative Agent is a party, whether or not an original or a copy of such agreement has been provided to the Administrative Agent; (iv) have a duty to know or inquire as to the performance or nonperformance of any provision of any other agreement, instrument, or document other than this Agreement; or (v) responsible for nor have any duty to monitor the performance or any action of the Loan Parties, the Lenders, or any of their directors, members, officers, agents, affiliates or employee, nor shall they have any liability in connection with the malfeasance or nonfeasance by such party; the Administrative Agent may assume performance by all such Persons of their respective obligations.

(c)          Each Lender acknowledges and agrees that neither such Lender, nor any of its Affiliates, participants or assignees, may rely on any Agent to carry out such Lender’s, Affiliate’s, participant’s or assignee’s customer identification program, or other obligations required or imposed under or pursuant to any Anti-Terrorism Law, including any programs involving any of the following items relating to or in connection with the Loan Parties or their respective Subsidiaries, any of their respective Affiliates or agents, the Loan Documents or the transactions hereunder:  (i) any identity verification procedures, (ii) any record keeping, (iii) any comparisons with government lists, (iv) any customer notices or (v) any other procedures required under any anti-terrorism Law.

(d)          The delivery by Borrower or any other Loan Party of any reports, information and documents to the Administrative Agent or the Required Lenders is for informational purposes only and the Administrative Agent’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein.

Section 9.04        Reliance by Agent.  Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, opinion, report, consent, Order, document or other writing (including any electronic message, internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent, or otherwise authenticated by a proper Person.  Each Agent also may rely upon any statement made to it orally and believed by it to be made by a proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan that by its terms must be fulfilled to the satisfaction of a Lender, each Agent may presume that such condition is satisfactory to such Lender unless each Agent shall have received written notice to the contrary from such Lender before the making of such Loan.  Each Agent may consult with legal counsel (who may be counsel for Borrower), independent accountants and other Advisors 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 Advisors.

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Section 9.05        Delegation of Duties.  Each Agent may perform any and all of its duties and exercise its rights and powers under this Agreement or under any other Loan Document by or through, or delegate any and all such rights and powers to, any one or more sub-agents appointed by such Agent and, so long as no Default or Event of Default has occurred and is continuing, Borrower consent (not to be unreasonably withheld or delayed) shall be required for (i) any delegation of a material portion of the duties of such Agent (taken as a whole) or (ii) any delegation that could reasonably be expected to have a Material Adverse Effect on Borrower; provided, however, if Borrower fails to reply to any delegation request pursuant to this Section 9.05 within two (2) Business Days, Borrower shall be deemed to have given its consent to such request; provided, further, Borrower consent shall not be required if such delegation is, in the opinion of such Agent, necessary or advisable to create, maintain, or perfect the security interest in or Lien on the Collateral.  Each 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 Affiliates.  The exculpatory, indemnification and other provisions of the preceding paragraphs shall apply to any such sub-agent and to the Affiliates of each Agent and any such sub-agent, and shall apply, without limiting the foregoing, to their respective activities in connection with the syndication of the Facility provided for herein as well as activities as Agent.  The Agents shall not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent.

Section 9.06       Successor Agent.  Each Agent may resign as such at any time upon at least 10 days’ prior notice to the Lenders and Borrower.  In addition, upon not less than thirty (30) days’ prior written notice to the Lenders and Borrower, each Agent may be removed (with or without cause) by the Required Lenders at any time in its sole discretion, but with the prior written consent of Borrower (such consent not to be unreasonably withheld, conditioned or delayed).  Upon any such resignation or removal, the Required Lenders shall have the right, in consultation with Borrower, to appoint a successor Agent from among the Lenders.  If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within five (5) days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which successor shall be (i) a commercial banking institution organized under the laws of the United States (or any State thereof) or a United States branch or agency of a commercial banking institution, in each case, having combined capital and surplus of at least $500,000,000, or an Affiliate of such institution, or (ii) another entity satisfactory to the Required Lenders; provided that if such retiring Agent is unable to find a successor Agent that is willing to accept such appointment and which meets the qualifications set forth above, the retiring Agent’s resignation shall nevertheless thereupon become effective and the retiring (or retired) Agent shall be discharged from all of its duties and obligations under the Loan Documents, and the Required Lenders shall assume and perform all of the duties of the Agent under the Loan Documents until such time, if any, as the Required Lenders appoint a successor Agent.  Upon the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Agent, and the retiring or removed Agent shall be discharged from all of its duties and obligations under this Agreement and the other Loan Documents.  The fees payable by Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor.  After an Agent’s resignation or removal hereunder, the provisions of this Article IX, Section 10.03 and Sections 10.08 to 10.10 shall continue in effect for the benefit of such retiring or removed Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent.  Notwithstanding any of the foregoing, each of the parties of this Agreement agree that any corporation or association into which an Agent may be converted or merged, or with which it may be consolidated, or to which it may sell or transfer all or substantially all of its corporate trust business and assets as a whole or substantially as a whole, or any corporation or association resulting from any such conversion, sale, merger, consolidation or transfer to which such Agent is a party, will be and become the successor under this Agreement and will have and succeed to the rights, powers, duties, immunities and privileges as its predecessor, without the execution or filing of any instrument or paper or the performance of any further act.

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Section 9.07      Non-Reliance on Agent and Other Lenders.  Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender or any of their respective Affiliates and based on such documents and information as it has deemed appropriate, conducted its own independent investigation of the financial condition and affairs of the Loan Parties and their Subsidiaries and made its own credit analysis and decision to enter into this Agreement.  Each Lender further represents and warrants that it has reviewed each document made available to it on the Platform in connection with this Agreement and has acknowledged and accepted the terms and conditions applicable to the recipients thereof (including any such terms and conditions set forth, or otherwise maintained, on the Platform with respect thereto).  Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender or any of their respective Affiliates and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.

Section 9.08       Indemnification.  The Lenders severally agree to indemnify each Agent in its capacity as such and each of its Related Persons (to the extent not reimbursed by Borrower or the Guarantors and without limiting the obligation of Borrower or the Guarantors to do so), ratably according to their respective outstanding Loans and Commitments in effect on the date on which indemnification is sought under this Section 9.08 (or, if indemnification is sought after the date upon which all Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such outstanding Loans and Commitments as in effect immediately before such date), from and against any and all liabilities, obligations, losses, damages, fines, penalties, actions, claims, suits, judgments, litigations, investigations, inquiries or proceedings, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent or Related Person in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein, the Transactions or any of the other transactions contemplated hereby or thereby or any action taken or omitted by such Agent or Related Person under or in connection with any of the foregoing (IN ALL CASES, WHETHER OR NOT CAUSED OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF ANY AGENT OR RELATED PERSON); providedthat no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, claims, suits, judgments, litigations, investigations, inquiries or proceedings, costs, expenses or disbursements that are found by a final and nonappealable judgment of a court of competent jurisdiction to have directly resulted solely and directly from such Agent’s or Related Person’s, as the case may be, gross negligence or willful misconduct.  The agreements in this Section 9.08 shall survive the payment of the Loans and all other amounts payable hereunder.

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Section 9.09        Lender Action.  Each Lender agrees that it shall not take or institute any actions or proceedings, judicial or otherwise, for any right or remedy against any Loan Party or any other obligor under any of the Loan Documents (including the exercise of any right of setoff, rights on account of any banker’s lien or similar claim or other rights of self-help), or institute any actions or proceedings, or otherwise commence any remedial procedures or cause any of the foregoing (through Affiliates or otherwise), with respect to any Collateral or any other Property of any such Loan Party, without the prior written consent of the Administrative Agent (acting at the direction of the Required Lenders).  Without limiting the foregoing, each Lender agrees that, except as otherwise provided in any Loan Documents or with the written consent of the Administrative Agent (acting at the direction of the Required Lenders), it will not take any enforcement action, accelerate Obligations under any Loan Documents, or exercise any right that it might otherwise have under applicable Legal Requirements to credit bid or purchase any portion of the Collateral at any sale or foreclosure (or similar exercise of remedies) thereof referred to in Section 9.01(b);providedthat nothing contained in this Section shall affect any Lender’s right to credit bid its pro rata share of the Obligations pursuant to Section 363(k) of the Bankruptcy Code.

Section 9.10        Withholding Taxes.  To the extent required by any applicable law, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax.  If the Internal Revenue Service or any other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender because the appropriate form was not delivered or was not properly executed or because such Lender failed to notify the Administrative Agent of a change in circumstance which rendered the exemption from, or reduction of, withholding Tax ineffective or for any other reason, or if Administrative Agent reasonably determines that a payment was made to a Lender pursuant to a Loan Document without deduction of applicable withholding Tax from such payment, within ten (10) days after demand therefor, such Lender shall indemnify the Administrative Agent fully for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any penalties or interest and together with all expenses (including legal expenses, allocated internal costs and out-of-pocket expenses) incurred.

Section 9.11         Lender’s Representations, Warranties and Acknowledgements.

(a)          Each Lender represents and warrants that it has made its own independent investigation of the financial condition and affairs of Borrower and its Subsidiaries in connection with Credit Events hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Borrower and its Subsidiaries.  No Agent shall have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit or other information with respect thereto, whether coming into its possession before the making of the Loans or at any time or times thereafter, and no Agent shall have any responsibility with respect to the accuracy of or the completeness of any information provided to the Lenders.  Each Lender acknowledges that no Agent or Related Person of any Agent has made any representation or warranty to it.  Except for documents expressly required by any Loan Document to be transmitted by an Agent to the Lenders, no Agent shall have any duty or responsibility (either express or implied) to provide any Lender with any credit or other information concerning any Loan Party, including the business, prospects, operations, Property, financial and other condition or creditworthiness of any Loan Party or any Affiliate of a Loan Party, that may come in to the possession of an Agent or any of its Related Persons.

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(b)          Each Lender, by delivering its signature page to this Agreement or an Assignment and Assumption and funding its Loan, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be approved by any Agent, the Required Lenders or the Lenders, as applicable, on the Closing Date.

Section 9.12          Security Documents and Guarantee.

(a)          Agents under Security Documents and Guarantee.  Each Secured Party hereby further authorizes the Administrative Agent or the Collateral Agent, as applicable, on behalf of and for the benefit of the Secured Parties, to be the agent for and representative of the Secured Parties with respect to the Guarantee, the Collateral and the Loan Documents.  Subject to Section 10.02, without further written consent or authorization from any Secured Party, the Administrative Agent or the Collateral Agent (acting at the direction of the Required Lenders), as applicable, may execute any documents or instruments necessary to (i) in connection with a sale or Disposition of assets permitted by this Agreement, release any Lien encumbering any item of Collateral that is the subject of such sale or other Disposition of assets or (ii) release any Guarantor from the Guarantee pursuant to Section 7.10, or with respect to which the Required Lenders (or such other Lenders as may be required to give such consent under Section 10.02) have otherwise consented (it being understood and agreed with respect to release of Liens under this subsection that the Administrative Agent or Collateral Agent, as applicable, in each case, may conclusively rely without further inquiry on a certificate of a Responsible Officer as to the release of Liens being made in fully compliance of the Loans Documents).

(b)          Right to Realize on Collateral and Enforce Guarantee.  Anything contained in any of the Loan Documents to the contrary notwithstanding, Borrower, the Administrative Agent, the Collateral Agent and each Secured Party hereby agree that (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the Guarantee, it being understood and agreed that all powers, rights and remedies hereunder and under any of the Loan Documents may be exercised solely by the Administrative Agent or the Collateral Agent, as applicable, for the benefit of the Secured Parties in accordance with the terms hereof and thereof and all powers, rights and remedies under the Security Documents may be exercised solely by the Collateral Agent for the benefit of the Secured Parties in accordance with the terms thereof, and (ii) in the event of a foreclosure or similar enforcement action by the Collateral Agent on any of the Collateral pursuant to a public or private sale or other Disposition (including, without limitation, pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code), the Collateral Agent (or any Lender, except with respect to a “credit bid” pursuant to Section 363(k), Section 1129(b)(2)(a)(ii) or otherwise of the Bankruptcy Code) may be the purchaser or licensor of any or all of such Collateral at any such sale or other Disposition and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities) shall be entitled, upon instructions from the Required Lenders, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale or Disposition, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale or other Disposition.

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(c)          Release of Collateral and Guarantees, Termination of Loan Documents.

(i)          Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Administrative Agent (acting at the direction of the Required Lenders) shall take such actions as shall be required to release its security interest in any Collateral subject to any Disposition permitted by the Loan Documents and to release any guarantee obligations under any Loan Document of any Person subject to such Disposition, to the extent necessary to permit consummation of such Disposition in accordance with the Loan Documents (it being understood and agreed with respect to release of Liens under this subsection that the Administrative Agent or Collateral Agent, as applicable, in each case, may conclusively rely without further inquiry on a certificate of a Responsible Officer as to the release of Liens being made in fully compliance of the Loans Documents).

(ii)          Notwithstanding anything to the contrary contained herein or any other Loan Document, when all Secured Obligations under clauses (a) and (b) of the definition thereof (other than contingent reimbursement and indemnification obligations that are not then due and payable) have been paid in full and all Commitments have terminated or expired, upon request of Borrower, the Administrative Agent and the Collateral Agent shall (without notice to, or vote or consent of, any Lender, or any other Secured Party) take such actions as shall be required or reasonably requested to release its security interest in all Collateral, and to release all guarantee obligations provided for in any Loan Document, whether or not on the date of such release there may be outstanding Secured Obligations under clause (c) of the definition thereof.  Any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Borrower or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Borrower or any Guarantor or any substantial part of its Property, or otherwise, all as though such payment had not been made.

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(iii)          In furtherance of the foregoing, the Administrative Agent and Collateral Agent shall not be responsible for (i) perfecting, maintaining, monitoring, preserving or protecting the security interest or Lien granted under this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, (ii) the filing, re-filing, recording, re-recording or continuing or any document, financing statement, Mortgage, assignment, notice, instrument of further assurance or other instrument in any public office at any time or times or (iii) providing, maintaining, monitoring or preserving insurance on or the payment of taxes with respect to any of the Collateral.  The actions described in items (i) through (iii) shall be the sole responsibility of Borrower.

Section 9.13        Administrative Agent May File Bankruptcy Disclosure and Proofs of Claim.

(a)          In case of the pendency of any proceeding under any Insolvency Laws relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:

(b)          to file a verified statement pursuant to rule 2019 of the Federal Rules of Bankruptcy Procedure that, in its sole opinion, complies with such rule’s disclosure requirements for entities representing more than one creditor;

(c)          to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its respective agents and counsel and all other amounts due the Administrative Agent under Sections 2.02 and 10.03) allowed in such judicial proceeding; and

(d)          to collect and receive any monies or other Property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under this Agreement.  To the extent that the payment of any such compensation, expenses, disbursements and advances of the Administrative Agent, its agents and counsel, and any other amounts due the Administrative Agent under this Agreement out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Lenders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.

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Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

Section 9.14       Hypothecary Representative.  For the purposes of the grant of security under the laws of the Province of Quebec (Canada) which may now or in the future be required to be provided by any Loan Party, the Collateral Agent is hereby irrevocably authorized and appointed by each of the Secured Parties, for themselves and for each affiliate that is a Secured Party, hereto to act as hypothecary representative (within the meaning of Article 2692 of the Civil Code of Québec) for all present and future Secured Parties (in such capacity, the “Hypothecary Representative”) in order to hold any hypothec granted under the laws of the Province of Quebec (Canada) and to exercise such rights and duties as are conferred upon the Hypothecary Representative under the relevant deed of hypothec and applicable law (with the power to delegate any such rights or duties). The execution prior to the date hereof by the Collateral Agent in its capacity as the Hypothecary Representative of any deed of hypothec or other security documents made pursuant to the laws of the Province of Quebec (Canada), is hereby ratified and confirmed. Any Person who becomes a Secured Party or successor Collateral Agent shall be deemed to have consented to and ratified the foregoing appointment of the Collateral Agent as the Hypothecary Representative on behalf of all Secured Parties, including such Person and any affiliate or branch of such Person designated as a Secured Party.  For greater certainty, the Collateral Agent, acting as the Hypothecary Representative, shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favor of the Collateral Agent in this Agreement, which shall apply mutatis mutandis.  In the event of the resignation of the Collateral Agent (which shall include its resignation as the Hypothecary Representative) and appointment of a successor Collateral Agent, such successor Collateral Agent shall also act as the Hypothecary Representative, as contemplated herein.

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Section 9.15        Intercreditor Agreement. REFERENCE IS MADE TO THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT. EACH LENDER PARTY HEREBY (a) AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTIONS CONTRARY TO THE PROVISIONS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, (b) IRREVOCABLY APPOINTS, AUTHORIZES AND INSTRUCTS ADMINISTRATIVE AGENT TO ENTER INTO THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT AS “ADMINISTRATIVE AGENT” AND ON BEHALF OF SUCH LENDER PARTY AND TO TAKE SUCH ACTIONS AND TO EXERCISE SUCH POWERS UNDER THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT AS ARE DELEGATED TO ADMINISTRATIVE AGENT BY THE TERMS THEREOF, TOGETHER WITH ALL SUCH POWERS AS ARE REASONABLY INCIDENTAL THERETO, (c) IRREVOCABLY APPOINTS, AUTHORIZES AND INSTRUCTS COLLATERAL AGENT TO ENTER INTO THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT AS “COLLATERAL AGENT” AND ON BEHALF OF SUCH LENDER PARTY AND TO TAKE SUCH ACTIONS AND TO EXERCISE SUCH POWERS UNDER THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT AS ARE DELEGATED TO COLLATERAL AGENT BY THE TERMS THEREOF, TOGETHER WITH ALL SUCH POWERS AS ARE REASONABLY INCIDENTAL THERETO, AND EACH LENDER PARTY UNDERSTANDS AND AGREES THAT COLLATERAL AGENT IS ALSO ACTING AS COLLATERAL AGENT FOR THE BENEFIT OF THE OTHER SECURED PARTIES, INCLUDING UNDER THE FIRST OUT TERM LOAN DOCUMENTS AND (d) ACKNOWLEDGES THE TERMS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE REPRESENTATIONS, WAIVERS, COVENANTS AND OTHER AGREEMENTS MADE WITH RESPECT TO, OR ON BEHALF OF, SUCH LENDER PARTY IN THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT. EACH LENDER PARTY AGREES THAT ANY ACTION TAKEN BY ADMINISTRATIVE AGENT, COLLATERAL AGENT OR REQUIRED LENDERS IN ACCORDANCE WITH THE PROVISIONS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, AND THE EXERCISE BY ADMINISTRATIVE AGENT, COLLATERAL AGENT OR REQUIRED LENDERS OF ANY RIGHTS OR REMEDIES SET FORTH THEREIN, TOGETHER WITH ALL OTHER POWERS REASONABLY INCIDENTAL THERETO, SHALL BE AUTHORIZED BY AND BINDING UPON ALL LENDER PARTIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ADMINISTRATIVE AGENT AND COLLATERAL AGENT, AS APPLICABLE, SHALL HAVE THE SOLE AND EXCLUSIVE AUTHORITY TO (I) ACT AS THE DISBURSING AND COLLECTING AGENT FOR LENDERS WITH RESPECT TO ALL PAYMENTS AND COLLECTIONS ARISING IN CONNECTION WITH THE LOAN DOCUMENTS; (II) EXECUTE AND DELIVER AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT, RESPECTIVELY, ANY INTERCREDITOR OR SUBORDINATION AGREEMENT (OR JOINDER THERETO), AND ACCEPT DELIVERY THEREOF FROM ANY LOAN PARTY OR OTHER PERSON; (III) ACT AS COLLATERAL AGENT FOR LENDER PARTIES FOR PURPOSES OF PERFECTING AND ADMINISTERING LIENS UNDER THE FINANCING DOCUMENTS, AND FOR ALL OTHER PURPOSES STATED THEREIN; (IV) MANAGE, SUPERVISE OR OTHERWISE DEAL WITH COLLATERAL; AND (V) TAKE ANY ENFORCEMENT ACTION OR OTHERWISE EXERCISE ANY RIGHTS OR REMEDIES WITH RESPECT TO ANY COLLATERAL UNDER THE LOAN DOCUMENTS, APPLICABLE LAW OR OTHERWISE. THE DUTIES OF ADMINISTRATIVE AGENT AND COLLATERAL AGENT SHALL BE MINISTERIAL AND ADMINISTRATIVE IN NATURE, AND NEITHER ADMINISTRATIVE AGENT NOR COLLATERAL AGENT SHALL HAVE A FIDUCIARY RELATIONSHIP WITH ANY LENDER PARTY, PARTICIPANT OR OTHER PERSON, BY REASON OF ANY LOAN DOCUMENT OR ANY TRANSACTION RELATING THERETO. THE PROVISIONS OF THIS SECTION ARE NOT INTENDED TO SUMMARIZE ALL RELEVANT PROVISIONS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT. REFERENCE MUST BE MADE TO THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF. EACH LENDER PARTY IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NONE OF ADMINISTRATIVE AGENT, COLLATERAL AGENT NOR ANY OF THEIR AFFILIATES MAKES ANY REPRESENTATION TO ANY LENDER PARTY AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN THE INTERCREDITOR AND COLLATERAL AGENCY  AGREEMENT. IN THE EVENT OF AN INCONSISTENCY BETWEEN THIS AGREEMENT AND THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT, THE PROVISIONS OF THE INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT SHALL GOVERN AND CONTROL.

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ARTICLE X

MISCELLANEOUS

Section 10.01      Notices.

(a)          Generally.  Notices and other communications provided for herein shall, except as provided in Section 10.01(b), be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail, email or sent by facsimile, as follows:

(i)           if to any Company, to Borrower at 12120 Sunset Hill Road, Suite 330, Reston, Virginia 20190, Attention:  Chief Financial Officer, Facsimile No.:  (404) 302-9920, with a copy to (which shall not constitute notice or service of process) (A) Jenner & Block LLP, 353 North Clark Street, Chicago, IL 60654, Attention:  Anna Meresidis, email: ameresidis@jenner.com and (B) Milbank LLP, 55 Hudson Yards, New York, NY 10001, Attention: Abhi Raval, email: araval@milbank.com;

(ii)          if to the Administrative Agent or the Collateral Agent, to it at:  Wilmington Trust, National Association, 50 South 6th Street, Suite 1290, Minneapolis, MN 55402, Attention:  David Bergstrom, Facsimile No.:  (612)-217-5651, with a copy to (which shall not constitute notice or service of process) Willkie Farr & Gallagher LLP, 787 Seventh Avenue New York, NY 10019-6099, Attention: Jason Pearl, email: jpearl@willkie.com;

(iii)          if to the Specified Lender Advisors, to it at:  Gibson, Dunn & Crutcher LLP 811 Main Street Suite 3000, Houston, TX 77002-6117, Attention:  Shalla Prichard, email: sprichard@gibsodunn.com; and

(iv)          if to a Lender, to it at its address (or facsimile number) set forth on Annex I or in the Assignment and Assumption pursuant to which such Lender shall have become a party hereto.

Notices and other communications to the Lenders hereunder may (subject to Section 10.01(b)) be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent.  Any party hereto may change its address, facsimile number or e-mail address for notices and other communications hereunder by notice to the other parties hereto.  The Administrative Agent or Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.  Unless the Administrative Agent otherwise prescribes, (A) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (B) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (A) of notification that such notice or communication is available and identifying the website address therefor.

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(b)          Posting.  Each Loan Party hereby agrees that it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to this Agreement and any other Loan Document, including all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (i) relates to a request for a new, or a conversion of an existing, Borrowing or other extension of credit (including any election of an interest rate or interest period relating thereto), (ii) relates to the payment of any principal or other amount due under this Agreement before the scheduled date therefor, (iii) provides notice of any Default or Event of Default under this Agreement or (iv) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other Credit Event hereunder (all such non-excluded communications, collectively, the “Communications”), by (x) transmitting the Communications in an electronic/soft medium in a format reasonably acceptable to the Administrative Agent at the e-mail address(es) provided to Borrower by the Administrative Agent from time to time or in such other form, including hard copy delivery thereof, as the Administrative Agent shall require or (y) pursuant to the last paragraph of Section 5.01.  In addition, each Loan Party agrees to continue to provide the Communications to the Administrative Agent in the manner specified in this Agreement or any other Loan Document or in such other form, including hard copy delivery thereof, as the Administrative Agent shall require.  Nothing in this Section 10.01 shall prejudice the right of the Agents, any Lender or any Loan Party to give any notice or other communication pursuant to this Agreement or any other Loan Document in any other manner specified in this Agreement or any other Loan Document or as any such Agent shall require.

(c)          Email.  To the extent consented to by the Administrative Agent in writing from time to time, the Administrative Agent agrees that receipt of the Communications by the Administrative Agent at its e-mail address(es) set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents.

(d)           Platform.  Each Loan Party further agrees that the Administrative Agent may make the Communications available to the other Agents, the Lenders by posting the Communications on a Platform.  The Platform and any Approved Electronic Communications are provided “as is” and “as available.”  The Agents do not warrant the accuracy or completeness of the Communications, or the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Platform and the Approved Electronic Communications.  No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects, is made by any Agent in connection with the Communications or the Platform.  In no event shall any Agent have any liability to any Loan Party, any Lender or any other Person for damages of any kind, whether or not based on strict liability and including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in contract, tort or otherwise) arising out of or related to any Loan Party’s or any Agent’s transmissions of Communications through Internet (including the Platform), except to the extent caused by the willful misconduct, bad faith or gross negligence of the Administrative Agent, as determined by a final, non-appealable judgment of a court of competent jurisdiction.  Notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.  Each Loan Party understands that the distribution of material through an electronic medium is not necessarily secure and that there are confidentiality and other risks associated with such distribution and agrees and assumes the risks associated with such electronic distribution, except to the extent caused by the willful misconduct, bad faith or gross negligence of the Administrative Agent, as determined by a final, non-appealable judgment of a court of competent jurisdiction.

(e)          Effective Delivery.  The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents.  Each Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents.  Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address.  Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

(f)          Document Retention.  Each Loan Party, each Lender and each Agent agrees that the Administrative Agent may, but shall not be obligated to, store any Approved Electronic Communications on the Platform in accordance with the Administrative Agent’s customary document retention procedures and policies.

(g)          Public Lenders.  Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to information that is not made available through the “Public Side Information” portion of the Platform and that may contain Non-Public Information with respect to Borrower, its Subsidiaries or their securities for purposes of United States federal or state securities laws.  In the event that any Public Lender has determined for itself to not access any information disclosed through the Platform or otherwise, such Public Lender acknowledges that (i) other Lenders may have availed themselves of such information and (ii) neither Borrower nor the Administrative Agent has any responsibility for such Public Lender’s decision to limit the scope of the information it has obtained in connection with this Agreement and the other Loan Documents.

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Section 10.02      Waivers; Amendment.

(a)          No failure or delay by any Agent, any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of each Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by Section 10.02(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.  Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether any Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time.  No notice or demand on Borrower or any other Loan Party in any case shall entitle Borrower or any other Loan Party to any other or further notice or demand in similar or other circumstances.

(b)          Subject to Section 2.16(c), Section 2.17, Section 2.18(g), Section 2.19 and Sections 10.02(c) and (d), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended, supplemented or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Borrower and the Required Lenders or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent, the Collateral Agent (in the case of any Security Document) and the Loan Party or Loan Parties that are parties thereto, in each case with the written consent of the Required Lenders; providedthat no such agreement shall:

(i)          increase or extend the expiry date of the Commitment of any Lender without the written consent of such Lender (it being understood and agreed that no amendment, modification, termination, waiver or consent with respect to any condition precedent, covenant, Default or Event of Default (or any definition used, respectively, therein), mandatory prepayment or mandatory reduction of the Commitments shall constitute an increase in or extension of the expiry date of the Commitment of any Lender for purposes of this clause (i));

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(ii)           reduce the principal amount or premium, if any, of any Loan or reduce the rate of interest thereon (other than interest pursuant to Section 2.06(c)), or reduce any Fees payable hereunder, or change the form or currency of payment of any Obligation, without the written consent of each Lender directly and adversely affected thereby (it being understood that any amendment or modification to the financial definitions in this Agreement shall not constitute a reduction in the rate of interest or fees for purposes of this clause (ii));

(iii)          postpone or extend the maturity of any Loan, or any scheduled date of payment of or the installment otherwise due on the principal amount of any Loan under Section 2.09, or the required date of payment of any reimbursement obligation, or any date for the payment of any interest or fees payable hereunder, or reduce the amount of, waive or excuse any such payment (other than a waiver of any increase in the interest rate pursuant to Section 2.06(c)), or postpone the scheduled date of expiration of any Commitment, without the written consent of each Lender directly and adversely affected thereby (it being understood and agreed that no amendment, modification, termination, waiver or consent with respect to any condition precedent, covenant, Default or Event of Default (or any definition used, respectively, therein), mandatory prepayment or mandatory reduction of the Commitments shall not constitute an extension of the maturity date or other scheduled payment of any Loan or constitute an extension of the expiration date of any Lender’s commitment);

(iv)          change Section 2.14(b) or (c) or Section 8.04 in a manner that would alter the order of or the pro rata sharing of payments or setoffs required thereby, without the written consent of each Lender;

(v)          change the percentage set forth in the definition of “Required Lenders” or any other provision of any Loan Document (including this Section 10.02) specifying the number or percentage of Lenders required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written consent of each Lender;

(vi)          release all or substantially all of the Guarantors from their respective Guarantees (except as expressly provided in Article VII), or limit their liability in respect of such Guarantees, without the written consent of each Lender;

(vii)         except as expressly permitted in this Agreement or any Security Document, release all or substantially all of the Collateral from the Liens of the Security Documents or alter the relative priorities of the Secured Obligations entitled to the Liens of the Security Documents (except in connection with securing additional Secured Obligations equally and ratably with the other Secured Obligations), in each case without the written consent of each Lender;

(viii)        change Section 10.04(h) without the consent of each Granting Lender all or any part of whose Loans are being funded by any SPC at the time of any such amendment, waiver or other modification;

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(ix)          change Section 10.04(b) in a manner which further restricts assignments thereunder without the written consent of each Lender;

(x)           permit assignments by any Loan Party of its rights or obligations under the Facility without the written consent of each Lender, the Administrative Agent, the Collateral Agent; or

(xi)          other than in respect of Liens securing Indebtedness permitted under Sections 6.01(d), (e) and (f), subordinate the Obligations (or the Liens securing the Obligations) under the Loan Documents to any other Indebtedness,

provided,further,that no such agreement shall amend, modify or otherwise affect the rights or duties of, or any fees or other amounts payable to, the Administrative Agent or the Collateral Agent without the prior written consent of the Administrative Agent and/or the Collateral Agent, as the case may be.  Notwithstanding the foregoing, any provision of this Agreement may be amended by an agreement in writing entered into by Borrower, the Required Lenders and the Administrative Agent if (x) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment, (y) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of, premium, if any, and interest accrued on each Loan made by it and all other amounts owing to it or accrued for its account under this Agreement, and (z) Section 2.16(b) is complied with.

(c)          Without the consent of any other Person, the applicable Loan Party or Loan Parties and the Administrative Agent and/or Collateral Agent may (in its or their respective sole discretion, or shall, to the extent required by any Loan Document) enter into any amendment or waiver of any Loan Document, or enter into any new agreement or instrument, to effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional Property to become Collateral for the benefit of the Secured Parties, or as required by applicable Legal Requirements to give effect to, or protect any security interest for the benefit of the Secured Parties, in any Property or assets so that the security interests therein comply with applicable Legal Requirements.

(d)           Notwithstanding the foregoing, (x) this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and Borrower (a) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders; (y) Borrower and the Administrative Agent may enter into amendments to this Agreement and the other Loan Documents in accordance with the provisions of Section 2.17, Section 2.18 and Section 2.19; and (z) the Loan Documents may be amended, modified, supplemented or waived with the consent of the Administrative Agent (acting at the direction of the Required Lenders) at the request of Borrower if such amendment, modification, supplement or waiver is delivered in order to (a) comply with local applicable Legal Requirements or advice of counsel or (b) cure any ambiguity, omission or mistake, in each case, so long as such amendment, modification, supplement or waiver does not directly and adversely affect the rights of any Lender and such amendment, modification, supplement or shall be deemed approved by the Required Lenders if such Lenders shall have received at least five Business Days’ prior written notice of such change and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment.

Section 10.03      Expenses; Indemnity; Damage Waiver.

(a)           The Loan Parties agree, jointly and severally, to pay, promptly upon demand:

(i)          all reasonable and documented out-of-pocket costs and expenses incurred by the Lenders (including the costs and expenses of the Specified Lender Advisors), the Administrative Agent and the Collateral Agent, including the reasonable fees, charges and disbursements of the Specified Lender Advisors and the Advisors to the Administrative Agent and the Collateral Agent (but limited, in the case of legal fees, to one firm for the Administrative Agent and the Collateral Agent, taken as a whole (and, if reasonably necessary, of one local counsel in any relevant jurisdiction and one special regulatory counsel in respect of any relevant regulations, in each case, for all such Persons and, solely in the case of any perceived or actual conflict of interest, one additional local counsel to such affected Person taken as a whole) and one firm for the Lenders taken as a whole (and, if reasonably necessary, of one local counsel in any relevant jurisdiction and one special regulatory counsel in respect of any relevant regulations, in each case, for all such Persons and, solely in the case of any perceived or actual conflict of interest, one additional local counsel to such affected Person taken as a whole)), in connection with the syndication of the Loans and Commitments, the preparation, negotiation, execution and delivery of the Loan Documents, the administration of the Credit Events and Commitments, the perfection and maintenance of the Liens securing the Collateral (including, without limitation, conducting Collateral audits from time to time) and any actual or proposed amendment, supplement or waiver of any of the Loan Documents (whether or not the transactions contemplated hereby or thereby shall be consummated);

(ii)          all reasonable and documented out-of-pocket costs and expenses incurred by the Lenders, Administrative Agent or the Collateral Agent, including the fees, charges and disbursements of the Specified Lender Advisors and the Advisors for the Administrative Agent and the Collateral Agent, in connection with any action, claim, suit, litigation, investigation, inquiry or proceeding affecting the Collateral or any part thereof, in which action, claim, suit, litigation, investigation, inquiry or proceeding the Required Lenders, the Administrative Agent or the Collateral Agent is made a party or participates or in which the right to use the Collateral or any part thereof is threatened, or in which it becomes necessary in the judgment of the Required Lenders, the Administrative Agent or the Collateral Agent to defend or uphold the Liens granted by the Security Documents (including any action, claim, suit, litigation, investigation, inquiry or proceeding to establish or uphold the compliance of the Collateral with any Legal Requirements);

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(iii)          all reasonable and documented out-of-pocket costs and expenses incurred by the Lenders, the Administrative Agent, the Collateral Agent, any other Agent or any Lender, including the fees, charges and disbursements of the Specified Lender Advisors and the Advisors for the Administrative Agent and the Collateral Agent (but limited, in the case of legal fees, to one firm for the Administrative Agent and the Collateral Agent, taken as a whole (and, if reasonably necessary, of one local counsel in any relevant jurisdiction and one special regulatory counsel in respect of any relevant regulations, in each case, for all such Persons and, solely in the case of any perceived or actual conflict of interest, one additional local counsel to such affected Person taken as a whole) and one firm for the Lenders taken as a whole (and, if reasonably necessary, of one local counsel in any relevant jurisdiction and one special regulatory counsel in respect of any relevant regulations, in each case, for all such Persons and, solely in the case of any perceived or actual conflict of interest, one additional local counsel to such affected Person taken as a whole)), with respect to any of the foregoing incurred in connection with the enforcement or protection of its rights under this Agreement and the other Loan Documents, including its rights under this Section 10.03(a), or in connection with the Loans made hereunder and the collection of the Secured Obligations, including all such costs and expenses incurred during any workout, restructuring or negotiations in respect of the Secured Obligations; and

(iv)          all Other Taxes in respect of the Loan Documents.

(b)          The Loan Parties agree, jointly and severally, to indemnify the Agents, each Lender and each of their respective Related Persons (each such Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless from, all reasonable out-of-pocket costs and any and all losses, claims, damages, liabilities, fees, fines, penalties, actions, judgments, suits and related expenses, including reasonable Advisors fees, charges and disbursements (collectively, “Claims”), incurred by, imposed on or asserted against any Indemnitee, directly or indirectly, arising out of, in any way connected with, or as a result of (i) the execution, delivery, performance, administration or enforcement of the Loan Documents or any agreement or instrument contemplated thereby or the performance by the parties thereto of their respective obligations thereunder, (ii) any actual or proposed use of the proceeds of the Loans, (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party thereto, (iv) any actual or alleged presence or Release or threatened Release of Hazardous Materials, on, at, under or from any Property owned, leased or operated by any Company at any time, or any Environmental Claim or threatened Environmental Claim related in any way to any Company, (v) any past, present or future non-compliance with, or violation of, Environmental Laws or Environmental Permits applicable to any Company, or any Company’s business, or any Property presently or formerly owned, leased, or operated by any Company or their predecessors in interest, (iv) the environmental condition of any Property owned, leased, or operated by any Company at any time, or the applicability of any Legal Requirements relating to such Property, whether or not occasioned wholly or in part by any condition, accident or event caused by any act or omission of any Company, (vii) the imposition of any environmental Lien encumbering any Real Property, (viii) the consummation of the Transactions and the other transactions contemplated hereby (including the syndication of the Facility) or (ix) any actual or prospective action, claim, suit, litigation, investigation, inquiry or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by any Loan Party or otherwise, and regardless of whether any Indemnitee is a party thereto; providedthat such indemnity shall not, as to any Indemnitee, apply (x) to disputes solely between or among the Indemnitees or disputes solely between or among Indemnitees and their respective Affiliates, other than disputes arising out of any act or omission on the part of Borrower or its Subsidiaries, it being understood and agreed that the indemnification in this Agreement shall extend to disputes between or among the Administrative Agent and the Collateral Agent, on the one hand, and one or more Lenders, or one or more of their Affiliates, on the other hand (y) to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final non-appealable judgment to have directly resulted solely from the gross negligence, bad faith or willful misconduct of such Indemnitee or any of such Indemnitee’s controlled or controlling affiliates or any of their respective officers, directors, employees, agents, controlling persons, members or representatives (collectively, such Indemnitee’s “Indemnitee Related Persons”), or (z) losses, claims, damages, liabilities or related expenses arising out of a material breach by such Indemnitee or any of its Indemnitee Related Persons of its obligations under any Loan Document (as determined by a final and non-appealable judgment of a court of competent jurisdiction).

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(c)           The Loan Parties agree, jointly and severally, that, without the prior written consent of the Administrative Agent or Lender, which consent(s) will not be unreasonably withheld, delayed, or conditioned, the Loan Parties will not enter into any settlement of a Claim in respect of the subject matter of clauses (i) through (ix) of Section 10.03(b) unless such settlement includes an explicit and unconditional release from the party bringing such Claim of all Indemnitees.

(d)           The provisions of this Section 10.03 shall remain operative and in full force and effect regardless of the expiration of the term of this Agreement, the consummation of the Transactions and the other transactions contemplated hereby, the repayment of the Loans and any other Secured Obligations, the release of any Guarantor or of all or any portion of the Collateral, the expiration of the Commitments, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any investigation made by or on behalf of the Agents or any Lender.  All amounts due under this Section 10.03 shall be accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested.

(e)           To the extent that the Loan Parties fail to indefeasibly pay any amount required to be paid by them to the Agents or any Related Person of any of the foregoing, under Section 10.03(a) or (b) in accordance with Section 10.03(g), each Lender severally agrees to pay to the Agents or such Related Person such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount (such indemnity shall be effective whether or not the related losses, claims, damages, liabilities and related expenses are incurred or asserted by any party hereto or any third party); providedthat the unreimbursed Claim was incurred by or asserted against any of the Agents in its capacity as such.  For purposes of this Section 10.03(e), a Lender’s “pro rata share” shall be determined based upon its share of the sum of the total Loans and unused Commitments at the time.

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(f)            To the fullest extent permitted by applicable Legal Requirements, no Loan Party shall assert, and each Loan Party hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, exemplary, consequential, or punitive damages (including any loss of profits, business or anticipated savings) arising out of, in connection with, or as a result of, any Loan Document or any agreement or instrument contemplated hereby or thereby, the Transactions, any Loan or the use of the proceeds thereof.  No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with the Loan Documents or the transactions contemplated hereby or thereby, except to the extent such Indemnitee is found in a final, non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct, bad faith or gross negligence of such Indemnitee or any of its Indemnitee Related Persons.

(g)           All amounts due under this Section 10.03 shall be payable not later than 10 days after receipt of demand therefor.

Section 10.04      Successors and Assigns.

(a)           The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Loan Parties may not assign or otherwise transfer any of their respective rights or obligations hereunder without the prior written consent of the Administrative Agent, the Collateral Agent and each Lender, which consent may be withheld in their respective sole discretion (and any attempted assignment or transfer by any Loan Party without such consent shall be null and void).  Nothing in this Agreement or any other Loan Document, express or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent expressly provided in Section 10.04(e) and, to the extent expressly contemplated hereby, the other Indemnitees) any legal or equitable right, remedy or claim under or by reason of this Agreement or any other Loan Document.

(b)           Any Lender shall have the right at any time to assign to one or more assignees (other than to any Company or any Affiliate thereof, any Competitor or any Defaulting Lender or a natural person) all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); providedthat:

(i)          except in the case of (A) an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, (B) contemporaneous assignments to related Approved Funds that equal at least the amount specified in this Section 10.04(b)(i) in the aggregate, or (C) an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 and the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $2,500,000;provided that the foregoing amounts may be reduced with the consent of the Administrative Agent and, so long as no Event of Default or Default under Section 8.01(a) or (b) has occurred and is continuing, Borrower (not to be unreasonably withheld or delayed);

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(ii)           each partial assignment shall be made as an assignment of a proportionate part of all of the assigning Lender’s rights and obligations under this Agreement;

(iii)         the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $1,750; providedthat such fee shall not be payable in the case of an assignment by any Lender to an Affiliate or an Approved Fund of such Lender;

(iv)          the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire; and

(v)           each of the Administrative Agent and, unless an Event of Default has occurred and is continuing, Borrower must give its prior written consent to such assignment (which consent shall not be unreasonably withheld, delayed or conditioned).

Notwithstanding the foregoing, the Administrative Agent shall not have any responsibility or liability for monitoring the list or identities of, or enforcing provisions relating to, Eligible Assignees.  Subject to acceptance and recording thereof pursuant to Section 10.04(c), from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement (providedthat any liability of Borrower to such assignee under Section 2.12, 2.13 or 2.15 shall be limited to the amount, if any, that would have been payable thereunder by Borrower in the absence of such assignment, except to the extent any such amounts are attributable to a Change in Law occurring after the date of such assignment), and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.12, 2.13, 2.15 and 10.03).

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(c)          The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of and stated interest on the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive and binding in the absence of manifest error, and Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by Borrower, the Collateral Agent and any Lender (with respect to its own interest only), at any reasonable time and from time to time upon reasonable prior notice.

(d)          Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in Section 10.04(b) and any written consent to such assignment required by Section 10.04(b), the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register.  No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this Section 10.04(b).  Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with the requirements of this Section 10.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.04(e).

(e)           Any Lender shall have the right at any time, without the consent of, or notice to Borrower, the Administrative Agent or any other Person to sell participations to any Person (other than any Company, any Competitor or any Affiliate thereof, a Defaulting Lender or a natural person) (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); providedthat (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) Borrower, the Administrative Agent, the Collateral Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve any amendment, modification or waiver of any provision of the Loan Documents; providedthat such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that (1) is described in clauses (i), (ii) or (iii) of the proviso to Section 10.02(b) and (2) directly and adversely affects such Participant.  Subject to Section 10.04(f), each Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.15 (but subject to the requirements and limitations of Section 2.16) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.04(b) (it being understood that the documentation required under Section 2.15(f) shall be delivered to the participating Lender).  To the extent permitted by Legal Requirements, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; providedthat such Participant agrees in writing to be subject to Section 2.14(c) as though it were a Lender.  Each Lender that sells a participation shall, acting for this purpose as a non-fiduciary agent of Borrower, maintain at one of its offices a register for the recordation of the names and addresses of its Participants, the principal amounts of and stated interest on, and terms of, its participations (the “Participant Register”).  The entries in the Participant Register shall be conclusive and binding absent manifest error, and such Lender (and Borrower, to the extent that the Participant requests payment from Borrower) 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.  No Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1 (c) of the United States Treasury Regulations.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

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(f)           A Participant shall not be entitled to receive any greater payment under Section 2.12, 2.13 or 2.15 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the prior written consent of Borrower (which consent shall not be unreasonably withheld, delayed or conditioned) or the greater payment results from a Change in Law after the date the participation was sold to the Participant.

(g)           Any Lender may at any time, without the consent of Borrower or the Administrative Agent, pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central bank, and this Section 10.04(g) shall not apply to any such pledge or assignment of a security interest; providedthat no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.  Without limiting the foregoing, in the case of any Lender that is a fund that invests in bank loans or similar extensions of credit, such Lender may, without the consent of Borrower, the Administrative Agent or any other Person, collaterally assign or pledge all or any portion of its rights under this Agreement, including the Loans and Notes or any other instrument evidencing its rights as a Lender under this Agreement, to any holder of, trustee for, or any other representative of holders of, obligations owed or securities issued, by such fund, as security for such obligations or securities.

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(h)           Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and Borrower, the option to provide to Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to such Borrower pursuant to this Agreement; providedthat (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof; provided,further, that nothing herein shall make the SPC a “Lender” for the purposes of this Agreement, obligate Borrower or any other Loan Party or the Administrative Agent to deal with such SPC directly, obligate Borrower or any other Loan Party in any manner to any greater extent than they were obligated to the Granting Lender, or increase costs or expenses of Borrower.  The Loan Parties and the Administrative Agent shall be entitled to deal solely with, and obtain good discharge from, the Granting Lender and shall not be required to investigate or otherwise seek the consent or approval of any SPC, including for the approval of any amendment, waiver or other modification of any provision of any Loan Document.  The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender.  Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender).  In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, before the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof.  In addition, notwithstanding anything to the contrary contained in this Section 10.04(h), any SPC may (i) with notice to, but without the prior written consent of, Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any financial institutions (consented to by Borrower and the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any Non-Public Information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC.

(i)            The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption 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 Legal Requirement, 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.

(j)            Certain Permitted Loan Repurchases.Notwithstanding anything to the contrary contained in this Section 10.04(j) or any other provision of this Agreement, so long as no Default or Event of Default has occurred and is continuing or would result immediately therefrom, Borrower may repurchase outstanding Loans on the following basis:

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(i)           Borrower may conduct one or more modified Dutch auctions (each, an “Auction”) to repurchase all or any portion of the Loans (such Loans, the “Offer Loans”) of Lenders, provided that, (A) Borrower delivers a notice of the Loans that will be subject to such Auction to Administrative Agent (for distribution to the Lenders) no later than noon(New York City time) at least five (5) Business Days in advance of a proposed consummation date of such Auction indicating (1) the date on which the Auction will conclude, (2) the maximum principal amount of Loans Borrower is willing to purchase in the Auction and (3) the range of discounts to par at which Borrower would be willing to repurchase the Offer Loans; (B) the maximum dollar amount of the Auction shall be no less than an aggregate $1,000,000 or an integral multiple of $500,000 in excess thereof; (C) Borrower shall hold the Auction open for a minimum period of two (2) Business Days; (D) a Lender who elects to participate in the Auction may choose to tender all or part of such Lender’s Offer Loans; (E) the Auction shall be made to Lenders holding the Offer Loans on a pro rata basis; and (F) the Auction shall be conducted pursuant to such procedures as the Administrative Agent may establish which are consistent with this Section 10.04(j), that a Lender must follow in order to have its Offer Loans repurchased;

(ii)          Borrower shall represent that, as of the launch date of the related Auction and the effective date of any Assignment and Assumption, it is not in possession of any material Non-Public Information regarding Borrower, its Subsidiaries, or their assets or securities, that (x) has not been disclosed generally to the Lenders which are not “public side” Lenders before such date and (y) could reasonably be expected to have a material effect upon, or otherwise be material to, a Lender’s decision to assign Loans to such Person;

(iii)         after giving effect to any purchase or assignment of Loans pursuant to this Section 10.04(j), the sum of all Unrestricted Cash of the Loan Parties and the undrawn and available portion of any revolving loan commitment of the Loan Parties shall not be less than $15,000,000.

(iv)          at the time of the consummation of each purchase and assignment of Loans pursuant to this Section 10.04(j), Borrower shall have delivered to the Administrative Agent an Officers’ Certificate as to compliance with the preceding clauses (iii) and (iv).

(v)          With respect to all repurchases made by Borrower pursuant to this Section 10.04(j), (A) Borrower shall pay to the applicable assigning Lender all accrued and unpaid interest, if any, on the repurchased Loans to the date of repurchase of such Loans, (B) the repurchase of such Loans by Borrower shall not be taken into account in the calculation of Excess Cash Flow, (C) notwithstanding anything to the contrary contained herein (including in the definitions of “Consolidated Net Income” and “Consolidated EBITDA”) any noncash gains in respect of “cancellation of indebtedness” resulting from the cancellation of any Loans purchased by Borrower shall be excluded from the determination of Consolidated Net Income and Consolidated EBITDA, and (D) such repurchases shall not be deemed to be voluntary prepayments or mandatory prepayment pursuant to Section 2.10 except that the amount of the Loans so repurchased shall be applied on a pro rata basis to reduce the scheduled remaining installments of principal on such Loan; and

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(vi)          Following repurchase by Borrower pursuant to this Section 10.04(j), the Loans so repurchased shall, without further action by any Person, be deemed cancelled for all purposes and no longer outstanding (and may not be resold by Borrower), for all purposes of this Agreement and all other Loan Documents, including, but not limited to (A) the making of, or the application of, any payments to the Lenders under this Agreement or any other Loan Document, (B) the making of any request, demand, authorization, direction, notice, consent or waiver under this Agreement or any other Loan Document or (C) the determination of Required Lenders, or for any similar or related purpose, under this Agreement or any other Loan Document.

(l)            In connection with any Loans repurchased and cancelled pursuant to this Section 10.04(j), Administrative Agent is authorized to make appropriate entries in the Register to reflect any such cancellation.

Section 10.05     Survival of Agreement.  All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the reports, certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Agents or any Lender may have had notice or knowledge of any Default or Event of Default, failure of any condition set forth in Article IV to be satisfied or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as any Obligation (other than (i) contingent reimbursement and indemnification obligations that are not then due and payable, and (ii) so long as the Commitments have not expired or terminated).  The provisions of Article IX and Sections 2.12 to 2.15, 9.06, 10.03 and 10.08 to 10.10 shall survive and remain in full force and effect regardless of the consummation of the Transactions and the other transactions contemplated hereby, the repayment of the Loans, the termination of the Commitments or the termination of this Agreement or any provision hereof.

Section 10.06     Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  This Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.

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Section 10.07    Severability.  Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

Section 10.08      Right of Setoff; Marshalling; Payments Set Aside.  If an Event of Default shall have occurred and be continuing, each 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 Legal Requirements, 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) (excluding Excluded Accounts) at any time owing by such Lender or any such Affiliate to or for the credit or the account of any Loan Party against any and all of the obligations of any Loan Party now or hereafter existing under this Agreement or any other Loan Documents held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Loan Document and although such obligations may be contingent or unmatured or are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness.  The rights of each Lender under this Section 10.08 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.  None of any Agent, any Lender shall be under any obligation to marshal any assets in favor of any Loan Party or any other Person or against or in payment of any or all of the Obligations.  To the extent that any Loan Party makes a payment or payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or any Agent or Lender enforces any security interests or exercises any right of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any Insolvency Law or any equitable cause, then, 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 or payments had not been made or such enforcement or setoff had not occurred.

Section 10.09      Governing Law; Jurisdiction; Waiver of Jury Trial; Consent to Service of Process.

(a)          This Agreement and the other Loan Documents and any claims, controversy, dispute or cause of action (whether sounding in contract, tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of New York without giving effect to any choice of law principles that would apply the laws of another jurisdiction, except to the extent the law of the State of New York is superseded by the Bankruptcy Code.

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(b)          Each Loan Party hereby irrevocably and unconditionally submits, for itself and its Property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State court or, to the extent permitted by applicable Legal Requirements, in such federal court.  Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Legal Requirements.  Nothing in this Agreement or any other Loan Document or otherwise shall affect any right that the Administrative Agent, any other Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Loan Party or its properties in the courts of any jurisdiction.

(c)          Each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable Legal Requirements, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in Section 10.09(b).  Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable Legal Requirements, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d)         Each party to this Agreement irrevocably consents to service of process in any action or proceeding arising out of or relating to any Loan Document, in the manner provided for notices (other than facsimile or email) in Section 10.01.  Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by applicable Legal Requirements.

(e)           If any conflict, disagreement or dispute arises between, among, or involving any of the parties hereto concerning the meaning or validity of any provision hereunder or concerning any other matter relating to this Agreement, or any Agent is in doubt as to the action to be taken hereunder, such Agent may, at its option, after sending written notice of the same to the applicable other parties hereto, refuse to act until such time as it (a) receives a final non-appealable order of a court of competent jurisdiction directing delivery of such assets or property or (b) receives a written instruction, executed by each of the parties involved in such disagreement or dispute, in a form reasonably acceptable to such Agent, directing delivery of such assets or property. The Agents will be entitled to act on any such written instruction or final, non-appealable order of a court of competent jurisdiction without further question, inquiry or consent.  The Agents may file an interpleader action in a state or federal court, and upon the filing thereof, the Agents will be relieved of all liability as to such assets or property and will be entitled to recover reasonable and documented out-of-pocket attorneys’ fees, expenses and other costs incurred in commencing and maintaining any such interpleader action.

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Section 10.10          Waiver of Jury Trial

. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LEGAL REQUIREMENTS, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT, THE TRANSACTIONS OR THE OTHER 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 PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.10.

Section 10.11      Headings.  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.

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Section 10.12      Confidentiality.  Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ and Approved Funds’ directors, officers, employees, agents, advisors and other representatives, including accountants, legal counsel and other Advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential pursuant to the terms hereof; it being agreed that each of the Administrative Agent and the Lenders shall be responsible for the compliance by each of its Affiliates and Approved Funds and each of its and their directors, officers, employees, agents, advisors and other representatives, including accountants, legal counsel and other Advisors compliance with this Section 10.12), (b) to the extent requested by any regulatory authority or any quasi-regulatory authority (such as the National Association of Insurance Commissioners) (in which event the applicable Administrative Agent or Lender shall promptly inform Borrower in advance to the extent permitted by applicable Legal Requirements and will cooperate with Borrower, at Borrower’s sole expense, in securing a protective order with respect thereto to the extent lawfully permitted to do so), (c) to the extent required by applicable Legal Requirements or by any subpoena or similar legal process (in which event the applicable Administrative Agent or Lender shall promptly inform Borrower in advance to the extent permitted by applicable Legal Requirements and will cooperate with Borrower, at Borrower’s sole expense, in securing a protective order with respect thereto to the extent lawfully permitted to do so), (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies under the Loan Documents or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section 10.12, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement; provided that the disclosure of any such Information to any such Person shall be made subject to the acknowledgment and acceptance by such Persons that such Information is being disseminated on a confidential basis (on substantially the terms set forth in this Section 10.12 or as is otherwise reasonably acceptable to Borrower and the Administrative Agent, including, without limitation, as agreed in any confidential information memorandum or other marketing materials), (ii) any actual or prospective counterparty (or its Advisors) to any swap or derivative transaction relating to Borrower and its obligations; provided that such Information shall be provided on a confidential basis on substantially the same terms set forth in this Section 10.12 or as is otherwise reasonably acceptable to Borrower and the Administrative Agent, or (iii) any actual or prospective investor in an SPC, (g) with the consent of Borrower, (h) to any rating agency when required by it, (i) to an investor or prospective investor in securities issued by an Approved Fund of any Lender that also agrees that Information shall be used solely for the purpose of evaluating an investment in such securities issued by an Approved Fund of any Lender or to a trustee, collateral manager, servicer, backup servicer, noteholder or secured party in securities issued by an Approved Fund of any Lender in connection with the administration, servicing and reporting on the assets serving as collateral for securities issued by such Approved Fund, (j) to any assignee or pledge under Section 10.04(g), or (k) to the extent such Information (x) is publicly available at the time of disclosure or becomes publicly available other than as a result of a breach of this Section 10.12 or (y) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a source other than Borrower or any Subsidiary.  In addition, each of the Administrative Agent and the Lenders may disclose the existence of this Agreement and the information about this Agreement to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans, market data collectors, similar service providers to the lending industry, and service providers to the Administrative Agent and the Lenders in connection with the administration and management of this Agreement and the other Loan Documents.  For the purposes of this Section 10.12, “Information” means all information received from Borrower relating to Borrower or any of its Subsidiaries or its business unless (x) it is clearly labeled “Public-Contains Only Public Information,” or (y) any such information is available to the Administrative Agent or any Lender on a nonconfidential basis before disclosure by Borrower.  Any Person required to maintain the confidentiality of Information as provided in this Section 10.12 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Section 10.13     Interest Rate Limitation.  Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively, the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable Legal Requirements, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section 10.13 shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.

Section 10.14      Assignment and Assumption.  Each Lender to become a party to this Agreement (other than the Administrative Agent and any other Lender that is a signatory hereto) shall do so by delivering to the Administrative Agent an Assignment and Assumption duly executed by each of the Persons required to be party thereto.

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Section 10.15      Obligations Absolute.  To the fullest extent permitted by applicable law, all obligations of the Loan Parties hereunder shall be absolute and unconditional irrespective of:

(a)           any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of any Loan Party;

(b)           any lack of validity or enforceability of any Loan Document or any other agreement or instrument relating thereto against any Loan Party;

(c)           any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from any Loan Document or any other agreement or instrument relating thereto;

(d)           any exchange, release or non-perfection or loss of priority of any Liens on any or all of the Collateral, or any release or amendment or waiver of or consent to any departure from any guarantee, for all or any of the Secured Obligations;

(e)           any exercise or non-exercise, or any waiver of any right, remedy, power or privilege under or in respect hereof or any Loan Document; or

(f)            any other circumstances which might otherwise constitute a defense available to, or a discharge of, the Loan Parties.

Section 10.16      Waiver of Defenses; Absence of Fiduciary Duties.

(a)           Each of the Loan Parties hereby waives any and all suretyship defenses available to it as a Guarantor arising out of the joint and several nature of its respective duties and obligations hereunder (including any defense contained in Article VII).

(b)          Each Agent, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Loan Parties, their stockholders and/or their Affiliates.  Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Loan Party, its stockholders or its Affiliates, on the other.  The Loan Parties acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Loan Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary responsibility in favor of any Loan Party, its stockholders or its Affiliates with respect to the transactions contemplated hereby or the exercise of rights or remedies with respect thereto or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Lender is acting solely as principal and not as the agent or fiduciary of any Loan Party, its management, stockholders, creditors or any other Person.  Each Loan Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.  Each Loan Party agrees that it will not claim that any Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto.

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Section 10.17      Reinstatement.  To the extent that any payments on the Indebtedness or proceeds of any Collateral are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor in possession, receiver, receiver and manager, interim receiver or other Person under any bankruptcy law or other Insolvency Law, common law or equitable cause, then to such extent, the Indebtedness so satisfied shall be revived and continue as if such payment or proceeds had not been received and the Secured Parties’ Liens, security interests, rights, powers and remedies under this Agreement and each Loan Document shall continue in full force and effect.  In such event, each Loan Document shall be automatically reinstated and each Loan Party shall take (and shall cause each other Loan Party to take) such action as may be requested by the Administrative Agent, the Collateral Agent or the Required Lenders to effect such reinstatement.

Section 10.18     USA Patriot Act.  Each Lender hereby notifies each Loan Party that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name, address and taxpayer identification number of each Loan Party and other information that will allow such Lender to identify such Loan Party in accordance with the Patriot Act.

Section 10.19      Acknowledgement and Consent to Bail-In of EEA Financial Institutions.

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

(a)          the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Bank that is an EEA Financial Institution; and

(b)          the effects of any Bail-In Action on any such liability, including, if applicable:

(i)          a reduction in full or in part or cancellation of any such liability;

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(ii)          a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii)          the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.

Section 10.20      Collateral Agency and Intercreditor Agreement. In the event of an inconsistency between this Agreement or any other Loan Document and the Intercreditor and Collateral Agency Agreement, the provisions of the Intercreditor and Collateral Agency Agreement shall govern and control.

Section 10.21      Certain ERISA Matters

(a)          Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of Borrower or any other Loan Party, that at least one of the following is and will be true:

(i)            such Lender is not using “plan assets” (within the meaning of 29 CFR § 2510.3-101, as modified by Section 3(42) of ERISA) of one or more Employee Benefit Plans in connection with the Loans or the Commitments,

(ii)          the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,

(iii)          (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or

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(iv)          such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

(b)          In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and its Affiliates, and not, for the avoidance of doubt, to or for the benefit of Borrower or any other Loan Party, that:

(i)           none of the Administrative Agent or its Affiliates is a fiduciary with respect to the assets of such Lender (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related to hereto or thereto),

(ii)          the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is independent (within the meaning of 29 CFR § 2510.3-21) and is a bank, an insurance carrier, an investment adviser, a broker-dealer or other person that holds, or has under management or control, total assets of at least  $50 million, in each case as described in 29 CFR § 2510.3-21(c)(1)(i)(A)-(E),

(iii)       the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is capable of evaluating investment risks independently, both in general and with regard to particular transactions and investment strategies (including in respect of the Obligations),

(iv)          the Person making the investment decision on behalf of such Lender with respect to the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement is a fiduciary under ERISA or the Code, or both, with respect to the Loans, the Commitments and this Agreement and is responsible for exercising independent judgment in evaluating the transactions hereunder, and

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(v)           no fee or other compensation is being paid directly to the Administrative Agent or its Affiliates for investment advice (as opposed to other services) in connection with the Loans, the Commitments or this Agreement.

(c)           The Administrative Agent hereby inform the Lenders that each such Person is not undertaking to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Commitments and this Agreement, (ii) may recognize a gain if it extended the Loans or the Commitments for an amount less than the amount being paid for an interest in the Loans or the Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Loan Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.

Section 10.22      Currency Indemnity. If, for the purposes of obtaining judgment in any court in any jurisdiction with respect to this Agreement or any other Loan Document, it becomes necessary to convert into a particular currency (the “Judgment Currency”) any amount due under this Agreement or under any other Loan Document in any currency other than the Judgment Currency (the “Currency Due”), then conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which judgment is given.  For this purpose “rate of exchange” means the rate at which the Administrative Agent is able, on the relevant date, to purchase the Currency Due with the Judgment Currency in accordance with its normal practice at its head office.  In the event that there is a change in the rate of exchange prevailing between the Business Day immediately preceding the day on which the judgment is given and the date of receipt by the Administrative Agent of the amount due, the Loan Parties shall, on the date of receipt by the Administrative Agent, pay such additional amounts, if any, or be entitled to receive reimbursement of such amount, if any, as may be necessary to ensure that the amount received by the Administrative Agent on such date is the amount in the Judgment Currency which when converted at the rate of exchange prevailing on the date of receipt by the Administrative Agent is the amount then due under this Agreement or such other Loan Document in the Currency Due.  If the amount of the Currency Due which the Administrative Agent is so able to purchase is less than the amount of the Currency Due originally due to it, Borrower shall indemnify and save the Administrative Agent and the Lenders harmless from and against all loss or damage arising as a result of such deficiency.  This indemnity shall constitute an obligation separate and independent from the other obligations contained in this Agreement and the other Loan Documents, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Administrative Agent from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due under this Agreement or any other Loan Document or under any judgment or order.

[Signature Page Follows]

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IN WITNESS WHEREOF, the parties hereto have caused this Senior Secured Term Loan Credit Agreement to be duly executed by their respective authorized officers or other authorized signatories as of the day and year first above written.

INTERNAP HOLDING LLC, as Borrower
By	/s/ Michael Sicoli
Name:	Michael Sicoli
Title:	Chief Executive Officer
INTERNAP CONNECTIVITY LLC, as a Guarantor
By	/s/ Richard P. Diegnan
Name:	Richard P. Diegnan
Title:	President and Secretary
UBERSMITH, INC., as a Guarantor
By	/s/ Richard P. Diegnan
Name:	Richard P. Diegnan
Title:	President and Secretary

 

WILMINGTON TRUST, NATIONAL ASSOCIATION as Administrative Agent and Collateral Agent
By	/s/ David Bergstrom
Name:	David Bergstrom
Title:	Vice President

EX-10.3

Exhibit 10.3

WARRANT AGREEMENT

This AGREEMENT (this “Agreement”), dated as of May 8, 2020 (the “Effective Date”), by and between Internap Holding LLC, a Delaware limited liability company (the “Company”), and American Stock Transfer & Trust Company, LLC, a New York limited liability trust company, as warrant agent (the “Warrant Agent”).

WHEREAS, on March 16, 2020 (the “Petition Date”), each of the Company and certain of its subsidiaries (collectively, the “Debtors”) commenced a voluntary case in the Bankruptcy Court for the Southern District of New York for relief under chapter 11 of the Bankruptcy Code (the “Chapter 11 Cases”), which cases were jointly administered pursuant to Rule 1015(b) of the Federal Rules of Bankruptcy Procedure under the caption In re Internap Technology Solutions Inc., et at., Case No. 20-22393;

WHEREAS, on the Petition Date, the Debtors filed the Joint Prepackaged Chapter 11 Plan of Reorganization of Internap Corporation and its Affiliated Debtors and Debtors in Possession (as amended, supplemented or otherwise modified in accordance with the terms thereof, the “Plan”) in the Chapter 11 Cases;

WHEREAS, pursuant to the Plan and the authority of the Order Approving the Debtors’ Disclosure Statement and Approving the Plan, on or as soon as practicable after the Effective Date, the Company will issue or cause to be issued the Warrants to the Warrantholders providing such holders the right to purchase, under certain circumstances, up to an aggregate of 1,120,836 Common Units, subject to adjustment as provided herein;

WHEREAS, on May 8, 2020, the Company was converted to limited liability company under the Delaware Act, by filing a certificate of conversion and certificate of formation with the Secretary of State of the State of Delaware;

WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the issuance of the Warrants and other matters as provided herein; and

WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when issued, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.

NOW, THEREFORE, in consideration of the foregoing and for the purpose of defining the terms and provisions of the Warrants and the respective rights and obligations hereunder and thereunder of the Company, the Warrant Agent and Warrantholders, respectively, the parties hereto agree as follows:

1.            Definitions; Rules of Construction.

1.1. Definitions.  As used in this Agreement, the terms set forth below shall have the respective meanings set forth in this Section 1.  Capitalized terms used in this Agreement that are not otherwise defined herein will have the respective meanings ascribed thereto in the LLC Agreement.

“Agreement” has the meaning set forth in the preamble hereof.

“Appropriate Officer” has the meaning set forth in Section 2.3(b).

“Business Day” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed in New York, New York.

“Change-of-Control Transaction” means any merger, consolidation, amalgamation or other similar transaction or series of related transactions to which the Company is a party and pursuant to which the “beneficial owners” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of the outstanding equity securities of the Company immediately prior to such transaction “beneficially own” less than fifty percent (50%) of the outstanding equity securities of the surviving entity immediately following such transaction.

“Chapter 11 Cases” has the meaning set forth in the recitals hereto.

“Chosen Courts” has the meaning set forth in Section 21.

“Close of Business” means 5:00 p.m. Eastern Time.

“Company” has the meaning set forth in the preamble hereof.

“Company Order” means a written request or order signed in the name of the Company by its Chairperson or any Co-Chairperson of the Board or its Chief Executive Officer or Treasurer, and delivered to the Warrant Agent.

“Confidential Information” has the meaning set forth in Section 10.2(b)(i).

“Corporate Agency Office” has the meaning set forth in Section 9.1.

“Current Market Price” means on any date the amount which a willing buyer would pay a willing seller in an arm’s length transaction on such date (neither being under any compulsion to buy or sell) for one Common Unit as determined as of such date for the purposes of any computation under this Agreement (including under Section 5.2), by the Treasurer of the Company in good faith, whose determination shall be conclusive and evidenced by a certificate of the Treasurer delivered to the Warrant Agent; provided, that in making such determination the Company may, at its option, rely on a value report produced by an Independent Financial Expert using one or more valuation methods that such Independent Financial Expert, in its best professional judgment, determines to be most appropriate for purposes of such determination.

“Debtors” has the meaning set forth in the recitals hereof.

“Effective Date” has the meaning set forth in the preamble hereof.

“Exercise Date” has the meaning set forth in Section 3.2(f).

“Exercise Notice” has the meaning set forth in Section 3.2(c).

“Exercise Period” means the period from and including the Original Issue Date to and including the Expiration Date.

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“Exercise Price” means, as of any Exercise Date, the price per Common Unit for which Warrants are exercisable, which shall initially equal $4.81 per Common Unit; provided, that such Exercise Price be subject to adjustment as provided in Section 5.1; provided, further, however, that, notwithstanding any adjustment provided for in Section 5.1, the Exercise Price shall never be less than $0.01.

“Expiration Date” means, subject to Section 6, May 8, 2024.

“Independent Financial Expert” means any nationally recognized investment banking, accounting or valuation firm selected and engaged by the Company that either (a) is reasonably acceptable to the Required Warrantholders or (b) is a firm (x) which does not (and whose directors, officers, employees and affiliates, to the knowledge of the Company, do not) have a material direct or indirect financial interest in the Company or any of its Affiliates (other than by virtue of compensation paid for advice or opinions referred to in the exception to clause (z)), as determined by the Board in its reasonable good faith judgment, (y) which has not been, within the last two (2) years, and, at the time it is called upon to give independent financial advice to the Company or any of its Affiliates, is not (and none of whose directors, officers, employees or affiliates, to the knowledge of the Company, is) a promoter, director or officer of the Company or any of its Affiliates or an underwriter with respect to any of the securities of the Company or any of its Affiliates and (z) which does not provide any advice or opinions to the Company or Affiliates except as an independent financial expert in connection with this Agreement. For the avoidance of doubt, the Company shall bear all of the fees, costs and expenses of the Independent Financial Expert.

“LLC Agreement” means that certain Limited Liability Company Agreement of the Company, dated as of the Effective Date, as it may be amended, modified or supplemented from time to time in accordance with the terms thereof.

“Non-Recourse Parties” has the meaning set forth in Section 24.

“Open of Business” means 9:00 a.m. Eastern time.

“Original Issue Date” means the Effective Date.

“Percentage Equity Ownership” has the meaning set forth in Section 9.3(b).

“Petition Date” has the meaning set forth in the recitals hereto.

“Plan” has the meaning set forth in the recitals hereto.

“Property Distribution” means any payment by the Company to holders of outstanding Common Units of any distribution, or any other dividend by the Company to such holders of (a) any equity securities of the Company, (b) evidences of indebtedness of the Company, (c) cash or other assets (including rights, warrants or other securities (of the Company or any other Person)), other than (x) any distribution or dividend upon a transaction to which Section 5.1(a), 5.1(b), 5.1(c) or 6 applies or (y) the issuance of Common Units upon the exercise of any Warrant or Common Units issued pursuant to an Equity Incentive Plan.

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“Property Distribution Per Unit Amount” means the quotient of (a) the fair market value of the applicable Property Distribution as determined by an Independent Financial Expert (provided, if the applicable Property Distribution consists solely of cash, then the fair market value of such Property Distribution shall be the total amount of cash distributed in connection therewith and not require the engagement of any Independent Financial Expert), divided by (b) the total number of outstanding Common Units held by the holders entitled to receive such Property Distribution.

“Required Warrantholders” means Warrantholders holding at least fifty percent (50%) of the outstanding Warrants.

“Sale Transaction” has the meaning set forth in Section 6.

 “Substantial Member” has the meaning set forth in Section 9.3(b).

“Transfer” has the meaning set forth in Section 9.3(a).

“Transfer Certificate” has the meaning set forth in Section 9.3(c).

“Warrant Agent” has the meaning set forth in the preamble hereof.

“Warrant Certificates” means those certain warrant certificates evidencing the Warrants, substantially in the form of Exhibit A.

“Warrant Register” has the meaning set forth in Section 9.2.

“Warrantholder” means any Person in whose name at the time any Warrant is registered upon the Warrant Register and, when used with respect to any Warrant Certificate, the Person in whose name such Warrant Certificate is registered in the Warrant Register.

“Warrants” means those certain warrants issued hereunder to purchase initially up to an aggregate of 1,120,836 Common Units, subject to adjustment pursuant to Section 5, and each warrant shall entitle the Warrantholder thereof to purchase 16,244 Common Units, subject to adjustment pursuant to Section 5.1.

1.2. Rules of Construction.  Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms; (b) references to Sections, Exhibits, paragraphs and clauses refer to Sections, Schedules, Exhibits paragraphs and clauses of this Agreement; (c) the terms “include”, “includes”, “including” or words of like import shall be deemed to be followed by the words “without limitation”; (d) the terms “hereof”, “herein” or “hereunder” refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) the term “or” is not exclusive and shall have the inclusive meaning of “and/or”; (f) defined terms herein will apply equally to both the singular and plural forms and derivative forms of defined terms will have correlative meanings; (g) references to any law or statute shall be deemed to refer to such law or statute as amended or supplemented from time to time and shall include all rules and regulations and forms promulgated thereunder, and references to any law, rule, form or statute shall be construed as including any legal and statutory provisions, rules or forms consolidating, amending, succeeding or replacing the applicable law, rule, form or statute; (h) references to any Person include such Person and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns; (i) references to “days” are to calendar days unless otherwise indicated; (j) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded; (k) references to “writing” or “written” shall include electronic mail; and (l) all references to $, currency, monetary values and dollars set forth herein shall mean United States dollars.

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2.            Warrant Certificates.

2.1.    Warrants.  Each Warrant Certificate shall evidence the number of Warrants specified therein and, at the Company’s option, either be (x) represented by physical certificates or (y) issued by electronic entry registration on the books of the Warrant Agent, and each Warrant evidenced thereby shall represent the right, subject to the provisions contained herein and therein, to purchase 16,244 Common Units, subject to adjustment as provided in Section 5.  Each Warrantholder, shall be deemed to have represented, warranted and agreed that, by reason of the ownership or possession of a Warrant or the Warrant Certificate representing the same, the Warrants held by it, whether represented by physical certificates or issued by electronic entry registration, shall be held by no more than one (1) holder of record within the meaning of Rule 12g5-1 of the Exchange Act.

2.2.    Form of Warrant Certificates.  The Warrant Certificates evidencing the Warrants shall be substantially in the form of Exhibit A, shall have such insertions, omissions, substitutions and other variations as are required or permitted by this Agreement, and may have such letters, numbers or other marks of identification and such legends, summaries, or endorsements typed, stamped, printed, lithographed or engraved thereon as the Appropriate Officer executing the same may approve (execution thereof to be conclusive evidence of such approval) and as do not amend, modify or supplement, in any material respect, the provisions of this Agreement, or as may be required to comply with any law or with any rule or regulation pursuant thereto or with any rule or regulation of any securities exchange on which the Warrants may be listed.

2.3.    Execution and Delivery of Warrant Certificates.

(a)    At any time and from time to time on or after the date of this Agreement, Warrant Certificates evidencing the Warrants may be executed by the Company and delivered to the Warrant Agent for countersignature, and the Warrant Agent shall, upon receipt of a Company Order and at the direction of the Company set forth therein, countersign and deliver such Warrant Certificates to the Company for original issuance to the respective Persons entitled thereto.  The Warrant Agent is further hereby authorized to countersign and deliver Warrant Certificates as required by this Section 2.3 or by Sections 2.2, 3.2(d), 7 or 9.

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(b)      The Warrant Certificates shall be executed in the corporate name and on behalf of the Company by the Chairperson (or any Co-Chairperson) of the Board, the Chief Executive Officer or Treasurer (each, an “Appropriate Officer”) and attested to by the Secretary or one of the Assistant Secretaries of the Company, either manually or by facsimile or electronic signature printed thereon.  The Warrant Certificates shall be manually countersigned by the Warrant Agent and shall not be valid for any purpose unless so countersigned.  In case any officer of the Company whose signature shall have been placed upon any of the Warrant Certificates shall cease to be such officer of the Company before countersignature by the Warrant Agent and issue and delivery thereof, such Warrant Certificates may, nevertheless, be countersigned by the Warrant Agent and issued and delivered with the same force and effect as though such person had not ceased to be such officer of the Company, and any Warrant Certificate may be signed on behalf of the Company by such person as, at the actual date of the execution of such Warrant Certificate, shall be a proper officer of the Company, although at the date of the execution of this Warrant Agreement any such person was not such officer.

2.4.    Withholding and Reporting Requirements.  The Company shall comply with all applicable tax withholding and reporting requirements imposed by any governmental unit, and all distributions or other situations requiring withholding under applicable law, including deemed distributions, pursuant to the Warrants will be subject to applicable withholding and reporting requirements.  Notwithstanding any provision to the contrary, the Company will be authorized to (a) take any actions that may be necessary or appropriate to comply with such withholding and reporting requirements, (b) apply a portion of any cash distribution to be made under the Warrants to pay applicable withholding taxes, (c) liquidate a portion of any non-cash distribution to be made under the Warrants to generate sufficient funds to pay applicable withholding taxes, (d) require reimbursement from any Warrantholder to the extent any withholding is required in the absence of any distribution or (e) establish any other mechanisms the Company believes are reasonable and appropriate, including requiring Warrantholders to submit appropriate tax and withholding certifications (such as IRS Forms W-9 and the appropriate IRS Forms W-8, as applicable) that are necessary to comply with this Section 2.4.

3.            Exercise and Expiration of the Warrants.

3.1.   Right to Acquire Common Units Upon Exercise.  Each Warrant Certificate shall, when countersigned by the Warrant Agent (which shall not be required for Warrant Certificates issued by electronic entry registration on the books of the Warrant Agent), entitle the Warrantholder thereof, subject to the provisions thereof and of this Agreement, to acquire from the Company, for each Warrant evidenced thereby, 16,244 Common Units at the Exercise Price, subject to adjustment as provided in this Agreement. The Exercise Price, and the number of Common Units obtainable upon exercise of each Warrant, shall be adjusted from time to time as required by Section 5.1.

3.2.    Exercise and Expiration of Warrants.

(a)      Exercise of Warrants.  Subject to and upon compliance with the terms and conditions set forth herein, a Warrantholder may exercise all or any portion of the Warrants held by such Warrantholder (including for the avoidance of doubt, exercising any single Warrant in part (if and to the extent permitted by the rules and procedures of the Warrant Agent)), on any Business Day from and after the Original Issue Date until Close of Business on the Expiration Date, for the Common Units obtainable thereunder. No Warrantholder who is, or upon the exercise of Warrants held by it pursuant to this Agreement will be, a Substantial Member may exercise any Warrants without consent of the Board.

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(b)      Expiration of Warrants.  The Warrants, to the extent not exercised prior thereto, shall automatically expire, terminate and become void as of Close of Business on the Expiration Date. No further action of any Person (including by, or on behalf of, any Warrantholder, the Company, or the Warrant Agent) shall be required to effectuate the expiration of Warrants pursuant to this Section 3.2(b).

(c)      Method of Exercise.  In order to exercise all or any of the Warrants represented by a Warrant Certificate, the Warrantholder thereof must (i) at the Corporate Agency Office (x) if the Warrants are represented by physical certificates, surrender to the Warrant Agent the Warrant Certificate evidencing such Warrants, and (y) deliver to the Warrant Agent a written notice (including the certification required therein) of the Warrantholder’s election to exercise the number of Warrants specified therein, duly executed by such Warrantholder, which notice shall be substantially in the form of the notice attached hereto as Exhibit B (the “Exercise Notice”) (provided, that the Warrant Agent hereby covenants to deliver a copy of such Exercise Notice to the Company), (ii) pay to the Warrant Agent an amount, equal to the product of (A) the Exercise Price times (B) the total number of Common Units into which such Warrants are being exercised, in any combination of the following elected by such Warrantholder: (1) certified bank check or official bank check in New York Clearing House funds payable to the order of the Warrant Agent and delivered to the Warrant Agent at the Corporate Agency Office (provided, that the Warrant Agent hereby covenants to deposit any such check received into an account specified in writing by the Company), or (2) wire transfer in immediately available funds to an account specified in writing by the Company to the Warrant Agent and such Warrantholder in accordance with Section 12.1(b); and (iii) at the Corporate Agency Office, deliver to the Warrant Agent a duly executed joinder to the LLC Agreement in accordance with Section 10.1 (provided, that the Warrant Agent hereby covenants to deliver such joinder to the Company). Upon receipt of the Exercise Notice from the exercising Warrantholder, the Warrant Agent shall promptly send the Company a copy of such Exercise Notice, and upon the Company’s reasonably prompt confirmation to the Warrant Agent that the exercise of Warrants pursuant to such Exercise Notice would not violate the terms of this Agreement, the Warrant Agent shall process the exercise in accordance with this Agreement.

(d)     Partial Exercise.  If fewer than all the Warrants represented by a Warrant Certificate are exercised, such Warrant Certificate shall be surrendered and a new Warrant Certificate of the same tenor and for the number of Warrants which were not exercised shall be executed by the Company.  The Warrant Agent shall countersign the new Warrant Certificate, registered in such name or names, subject to the provisions of Section 9.3, as may be directed in writing by the Warrantholder, and shall deliver the new Warrant Certificate to the Person or Persons in whose name such new Warrant Certificate is so registered.  The Company, whenever required by the Warrant Agent, will supply the Warrant Agent with Warrant certificates duly executed on behalf of the Company for such purpose. Any Warrant exercised in part, to the extent permitted by the rules and procedures of the Warrant Agent, may be required to be surrendered for a new Warrant Certificate representing such remaining fractional Warrant as and to the extent required by the rules and procedures of the Warrant Agent.

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(e)      Issuance of Common Units.  Upon due exercise of Warrants in conformity with the foregoing provisions of Section 3.2(c), the Company shall, as promptly as practicable after the Exercise Date, deliver or cause to be delivered to the exercising Warrantholder the aggregate number of Common Units issuable upon such exercise (based upon the aggregate number of Warrants so exercised), determined in accordance with Section 3.6, together with an amount in cash in lieu of any fractional unit(s), if the Company so elects pursuant to Section 5.2.  The Common Units so delivered shall be registered or otherwise placed in the name of, and delivered to, the exercising Warrantholder.

(f)      Time of Exercise.  Each exercise of a Warrant shall be deemed to have been effected immediately prior to the Close of Business on the first (1^st) day on which each of the following has occurred (the “Exercise Date”): (i) the Warrant Certificate representing such Warrant has been surrendered for exercise and the Exercise Notice (in substantially the form attached hereto at Exhibit B, including the certification required therein) has been duly executed by the Warrantholder and delivered to the Warrant Agent as provided in Section 3.2(c); (ii) the Warrant Agent has been paid an amount equal to the aggregate of the applicable Exercise Price in respect of each Common Unit into which such Warrants are being exercised as provided in Section 3.2(c); and (iii) the exercising Warrantholder shall have executed and delivered the applicable joinder to the LLC Agreement contemplated by Section 3.2(c)(iii).  On the Exercise Date, the exercising Warrantholder shall, as between such Person and the Company, be deemed to be and entitled to all rights of the holder or record of such Common Units then issued. Any attempt to exercise any Warrants not in compliance with this Agreement or any exercise pursuant to which the Exercise Notice contained false or incorrect representations by the Warrantholder shall be null and void ab initio, and the Company and the Warrant Agent shall not give any effect in their respective records to such attempted exercise of Warrants.

3.3.    Application of Funds Upon Exercise of Warrants.  Any funds delivered to the Warrant Agent upon exercise of any Warrant(s) shall be held by the Warrant Agent in trust for the Company.  The Warrant Agent shall promptly deliver and pay to or upon the written order of the Company all funds received by it upon the exercise of any Warrants by bank wire transfer to an account designated by the Company or as the Warrant Agent otherwise may be directed in writing by the Company.

3.4.    Payment of Taxes.  The Company shall pay any and all taxes (other than income taxes) that are payable in respect of the issue or delivery of Common Units to the exercising Warrantholder on exercise of Warrants pursuant hereto.

3.5.    Surrender of Certificates.  Any Warrant Certificate surrendered for exercise shall, if surrendered to the Company, be delivered to the Warrant Agent, and all Warrant Certificates surrendered or so delivered to the Warrant Agent shall be promptly cancelled by the Warrant Agent and shall not be reissued by the Company.  The Warrant Agent shall destroy such cancelled Warrant Certificates and deliver its certificate of destruction to the Company, unless the Company shall otherwise direct.

3.6.    Common Units Issuable.  The number of Common Units “obtainable upon exercise” of Warrants at any time shall be the number of Common Units into which such Warrants are then exercisable.  The number of Common Units “into which each Warrant is exercisable” shall initially be 16,244 Common Units, subject to adjustment as provided in Section 5.1.

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4.           Notices for Tag-Along and Registration Rights.

4.1.    In the event the Company receives a Sales Notice of a proposed Tag-Along Sale under Section 8.3 of the LLC Agreement, the Company shall notify the Warrantholders that the Company has received such Sale Notice to the Warrantholders no later than fifteen (15) days prior to the closing date of the Tag-Along Sale.

4.2.    In the event the Company receives a Demand Notice requesting that the Company effect a Demand Registration under Section 10.1(a) of the LLC Agreement, the Company shall notify the Warrantholders that the Company has received such Demand Notice to the Warrantholders no later than five (5) Business Days after receipt of such Demand Notice.

4.3.    If at any time the Company proposes to file a Piggyback Registration Statement pursuant to Section 10.1(b) of the LLC Agreement, the Company shall notify the Warrantholders of such Piggyback Registration Statement at least ten (10) Business Days before the anticipated filing date of such Piggyback Registration Statement.

4.4.    Any notice by the Company to the Warrantholders pursuant to this Article IV shall contain the then-applicable Exercise Price and any other information determined by the Company to be relevant regarding the events described in this Article IV.

4.5.    No Warrantholder, solely by reason of the ownership or possession of a Warrant or the Warrant Certificate representing the same, shall have any rights to participate in the transactions described in the notices provided to Warrantholders under this Article IV unless and to the extent such Warrantholder exercises the Warrants held by it, and thereby becomes a Common Unit holder, prior to the consummation of such transaction(s) and properly exercises such rights in accordance with the LLC Agreement (including the conditions, limitations and time frames set forth therein).

5.           Adjustments.

5.1.    Adjustments.  In order to prevent dilution of the rights granted under the Warrants, the Exercise Price shall be subject to adjustment from time to time as provided in this Section 5.1 and the number of Common Units obtainable upon exercise of the Warrants shall be subject to adjustment from time to time as provided in this Section 5.1 (in each case, after taking into consideration any prior adjustments pursuant to this Section 5.1).

(a)      Subdivisions and Combinations. In the event the Company shall, at any time or from time to time after the Original Issue Date while the Warrants remain outstanding and unexpired in whole or in part, effect a subdivision (by any unit split or otherwise) of the outstanding Common Units into a greater number of Common Units (other than (x) a unit split effected by means of a unit distribution or unit dividend to which Section 5.1(b) applies or (y) a subdivision upon a transaction to which Section 5.1(c) or 6 applies), then and in each such event the Exercise Price in effect at the Open of Business on the day after the date for the determination of the holders of outstanding Common Units entitled to receive shares of Common Stock issuable as a result of such subdivision shall be decreased by multiplying the Exercise Price immediately in effect prior thereto by a fraction (i) the numerator of which shall be the total number of Common Units issued and outstanding at the Close of Business on such date for determination and (ii) the denominator of which shall be the number of Common Units issued and outstanding at the Close of Business on such date for determination plus the number of Common Units issuable as a result of such subdivision.  Conversely, if the Company shall, at any time or from time to time after the Original Issue Date while the Warrants remain outstanding and unexpired in whole or in part effect a combination (by any reverse unit split or otherwise) of the outstanding Common Units into a smaller number of Common Units (other than a combination upon a transaction to which Section 5.1(c) or 6 applies), then and in each such event the Exercise Price in effect at the Open of Business on the day after the date for the determination of the holders of outstanding Common Units subject to such combination shall be increased by multiplying the Exercise Price immediately in effect prior thereto by a fraction (i) the numerator of which shall be the total number of Common Units issued and outstanding at the Close of Business on such date for determination and (ii) the denominator of which shall be the number of Common Units issued and outstanding at the Close of Business on such date for determination less the number of Common Units reduced as a result of such combination. Any adjustment under this Section 5.1(a) shall become effective immediately after the Open of Business on the day after the date upon which the subdivision or combination becomes effective.

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(b)     Common Unit Distributions.  In the event the Company shall, at any time or from time to time after the Original Issue Date while the Warrants remain outstanding and unexpired in whole or in part, make or issue to the holders of its outstanding Common Units a distribution or dividend payable in, or otherwise make or issue a distribution or other dividend on any class of its capital stock payable in, Common Units (other than a distribution or dividend upon a transaction to which Section 5.1(c) or 6 applies), then and in each such event the Exercise Price in effect at the Open of Business on the day after the date for the determination of the holders of outstanding Common Units entitled to receive such distribution or dividend shall be decreased by multiplying the Exercise Price immediately in effect prior thereto by a fraction (not to be greater than one) (i) the numerator of which shall be the total number of Common Units issued and outstanding at the Close of Business on such date for determination and (ii) the denominator of which shall be the number of Common Units issued and outstanding at the Close of Business on such date for determination plus the number of Common Units issuable in payment of such distribution or dividend. Any adjustment under this Section 5.1(b) shall become effective immediately after the Open of Business on the day after the date for the determination of the holders of outstanding Common Units entitled to receive such distribution or dividend, subject to the Company’s right to defer issuance upon exercise of Warrants in accordance with Section 5.1(f)(iii).

(c)      Reclassifications.  In the event of any (i) reclassification of the Common Units of the Company (including  in connection with a proposed Public Offering of the Company approved by the Board with respect to which either (A) the managing underwriters advise the Company that in their opinion the capital structure of the Company or its form of legal entity may adversely affect the marketability of the offering or (B) the Board determines that a legal entity other than the Company is the most suitable entity for purposes of effectuating the Public Offering, but excluding a reclassification consisting of solely (x) a unit distribution or dividend of solely Common Units to which Section 5.1(b) applies or (y) a subdivision or combination of solely Common Units to which Section 5.1(a) applies), (ii) consolidation or merger of the Company with or into another Person that does not constitute a Change-of-Control Transaction, or (iii) other similar transaction, in each case which entitled the holders of Common Units to receive (either directly or upon subsequent liquidation and whether in whole or in part) units, securities or assets with respect to or in exchange for Common Units, the Warrants shall, immediately after such transaction, remain outstanding and shall thereafter, in lieu of or in addition to (as the case may be) the number of Common Units then issuable upon exercise of the Warrants, be exercisable for the kind and number of securities resulting from such transaction to which the Warrantholders would have received upon such transaction if the Warrantholders had exercised the Warrants in full immediately prior to the time of such transaction and acquired the applicable number of Common Units then issuable upon exercise of the Warrants as a result of such exercise (without taking into account any limitations or restrictions on the exercisability of the Warrants), and, in such case, the Company shall (or shall cause any such other Person to) enter into a supplemental agreement, executed and delivered to the Warrant Agent, in form reasonably satisfactory to the Warrant Agent and the Required Warrantholders, providing for appropriate adjustment with respect to the Warrantholders’ rights under the Warrants to insure that the provisions of this Agreement (including Sections 5 and 9 hereof) shall thereafter be applicable, as nearly as possible, to the Warrants in relation to any securities thereafter acquirable upon exercise of the Warrants. The provisions of this Section 5.1(c) shall similarly apply to successive reclassifications.

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(d)      Property Distributions.  In the event the Company shall, at any time or from time to time after the Original Issue Date while the Warrants remain outstanding and unexpired in whole or in part, make or issue a Property Distribution, then and in each such event the Exercise Price in effect immediately prior to the Close of Business on the date for the determination of the holders of outstanding Common Units entitled to receive such Property Distribution shall be decreased by the Property Distribution Per Unit Amount as of the record date for such distribution of such Property Distribution so distributed.  Any adjustment under this Section 5.1(d) shall become effective immediately prior to the Open of Business on the day after the date for the determination of the holders of Common Units entitled to receive such distribution or dividend.

(e)      Common Unit Issuances.  The Exercise Price shall not be adjusted for any other issuances, approved by the Board, of Common Units, or securities convertible, exercisable or exchangeable for or into Common Units, including Common Units issued to officers and/or employees of the Company and/or its subsidiaries pursuant to an Equity Incentive Plan. For the avoidance of doubt, this Section 5.1(e) does not apply to any of the transactions described in Sections 5.1(a), 5.1(b), 5.1(c), 5.1(d) and/or 6.

(f)       Other Provisions Applicable to Adjustments.  The following provisions shall be applicable to the making of adjustments to the Exercise Price and the number of Common Units into which each Warrant is exercisable under this Section 5.1:

(i)      When Adjustments Are to be Made.  The adjustments required by Sections 5.1(a), 5.1(b), 5.1(c) and 5.1(d) shall be made whenever and as often as any specified event requiring an adjustment shall occur.

(ii)     Fractional Interests.  In computing adjustments under this Section 5, fractional interests in Common Units shall be taken into account to the nearest one-hundredth of a Common Unit.

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(iii)    Deferral of Issuance Upon Exercise.  In any case in which this Section 5.1 shall require that a decrease in the Exercise Price be made effective prior to the occurrence of a specified event and any Warrant is exercised after the time at which the adjustment became effective but prior to the occurrence of such specified event and, in connection therewith, Section 5.1(g) shall require a corresponding increase in the number of Common Units into which each Warrant is exercisable, the Company may elect to defer until the occurrence of such specified event (A) the issuance to the Warrantholders of, and the registration of such Warrantholder (or other Person) as the record holder of, the Common Units over and above the Common Units issuable upon such exercise on the basis of the number of Common Units obtainable upon exercise of such Warrant(s) immediately prior to such adjustment and to require payment in respect of such number of Common Units the issuance of which is not deferred on the basis of the Exercise Price in effect immediately prior to such adjustment and (B) the corresponding reduction in the Exercise Price; provided, however, that the Company shall deliver to such Warrantholder or other Person a due bill or other appropriate instrument that evidences the right of such Warrantholder or other Person to receive, and to become the record holder of, such additional Common Units, upon the occurrence of such specified event requiring such adjustment (without payment of any additional Exercise Price in respect of such additional Common Units).

(g)      Adjustment to Common Units Obtainable Upon Exercise.  Whenever the Exercise Price is adjusted as provided in Sections 5.1(a) or 5.1(b), the number of Common Units into which a Warrant is exercisable (after taking account (in the case of a  fractional Warrant, if any), all prior exercises of such Warrant in part, if and to the extent such partial exercise of a single Warrant is permitted by the rules and procedures of the Warrant Agent) shall simultaneously be adjusted by multiplying such number of Common Units into which a Warrant is exercisable immediately prior to such adjustment by a fraction, the numerator of which shall be the Exercise Price immediately prior to such adjustment, and the denominator of which shall be the Exercise Price immediately thereafter.

(h)     Other Adjustments.  In case any event of the type contemplated by the provisions of Sections 5.1(a), 5.1(b), 5.1(c) and 5.1(d) shall occur as to which the provisions of such sections are not strictly applicable but the failure to make any adjustment would not fairly protect the purchase rights represented by this Warrant Agreement in accordance with the essential intent and principles of this Section 5.1, then, in each such case, the Company shall make an appropriate adjustment as determined in good faith by the Board to the Exercise Price and/or number of Common Units issuable upon exercise of a Warrant (after taking account (in the case of a  fractional Warrant, if any), all prior exercises of such Warrant in part, if and to the extent such partial exercise of a single Warrant is permitted by the rules and procedures of the Warrant Agent) (x) so as to protect the rights of the Warrantholders in a manner consistent with the provisions of this Section 5.1 or (y) in order that any event treated for U.S. federal income tax purposes as a distribution of common units or common unit rights shall not be taxable to the recipients.

(i)       Notice of Adjustment.  Upon the occurrence of each adjustment of the Exercise Price or the number of Common Units into which a Warrant is exercisable pursuant to this Section 5.1, the Company at its expense shall promptly:

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(i)      compute such adjustment in accordance with the terms hereof;

(ii)     after such adjustment becomes effective, deliver to all Warrantholders, in accordance with Section 12.1(b), a notice setting forth such adjustment (including the kind and amount of securities, cash or other property for which the Warrants shall be exercisable and the Exercise Price) and showing in detail the facts upon which such adjustment is based; and

(iii)    deliver to the Warrant Agent a certificate of the Chief Executive Officer or Treasurer of the Company setting forth the Exercise Price and the number of Common Units into which each Warrant is exercisable after such adjustment and setting forth a brief statement of the facts requiring such adjustment and the computation by which such adjustment was made (including a description of the basis on which the fair market value of any evidences of indebtedness, units of equity securities, securities or other assets or consideration used in the computation was determined).  As provided in Section 11.1, the Warrant Agent shall be entitled to rely on such certificate and shall be under no duty or responsibility with respect to any such certificate, except to exhibit the same from time to time to any Warrantholder desiring an inspection thereof during reasonable business hours.

(j)       Statement on Warrant Certificates.  Irrespective of any adjustment in the Exercise Price or amount or kind of units into which the Warrants are exercisable, Warrant Certificates theretofore or thereafter issued may continue to express the same Exercise Price initially applicable or amount or kind of units initially issuable upon exercise of the Warrants evidenced thereby pursuant to this Agreement.

5.2.    Fractional Interest.  The Company shall not be required upon the exercise of any Warrant to issue any fractional Common Units, but may, in lieu of issuing any fractional Common Units make an adjustment therefore in cash on the basis of the Current Market Price per Common Unit on the applicable Exercise Date.  If Warrant Certificates evidencing more than one (1) Warrant shall be presented for exercise at the same time by the same Warrantholder, the number of full Common Units which shall be issuable upon such exercise thereof shall be computed on the basis of the aggregate number of Warrants so to be exercised.  The Warrantholders, by their acceptance of the Warrant Certificates, expressly waive their right to receive any fraction of a Common Unit or a unit certificate representing a fraction of a Common Unit if such amount of cash is paid in lieu thereof.

6.           Change-of-Control Transaction, Reorganization, Dissolution, etc.

In connection with any (i) Change-of-Control Transaction, (ii) the sale, transfer or other disposition of all or substantially all of the Company’s assets to any other Person, (iii) voluntary or involuntary dissolution, liquidation or winding-up of the Company, or (iv) other similar transaction, but excluding in each case any of the transactions described in Sections 5.1(a), 5.1(b), 5.1(c), and 5.1(d) (each of the transactions described in clauses (i) through (iv) being referred to herein as a “Sale Transaction”), the Company shall give written notice of such Sale Transaction in the manner provided in Sections 12.1(b) and 12.2. Each Warrantholder shall have the option to exercise their Warrant at the Exercise Price and, if such Warrant is not exercised upon the consummation of such Sale Transaction, then such Warrant will be automatically terminated in accordance with Section 3.2(b). Notwithstanding the foregoing, the Warrantholders may revoke their exercise if such Sale Transaction is not consummated and the agreement governing such transaction is terminated. For the avoidance of doubt, in the event a transaction described in Section 5.1(a), 5.1(b), 5.1(c), or 5.1(d) occurs prior to the consummation of a Sale Transaction, the adjustments to the Exercise Price or the number of Common Units obtainable upon exercise of the Warrants provided for in Section 5.1 shall be given effect prior to the consummation of such Sale Transaction.

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7.           Loss or Mutilation.

If (a) any mutilated Warrant Certificate is surrendered to the Warrant Agent or (b) both (i) there shall be delivered to the Company and the Warrant Agent (A) a claim by a Warrantholder as to the destruction, loss or wrongful taking of any Warrant Certificate of such Warrantholder and a request thereby for a new replacement Warrant Certificate, and (B) such indemnity bond as may be required by them to save each of them and any agent of either of them harmless and (ii) such other reasonable requirements as may be imposed by the Company have been satisfied, then, in the absence of notice to the Company or the Warrant Agent that such Warrant Certificate has been acquired by a “protected purchaser”, the Company shall execute and upon its written request the Warrant Agent shall countersign and deliver to the registered Warrantholder of the lost, wrongfully taken, destroyed or mutilated Warrant Certificate, in exchange therefore or in lieu thereof, a new Warrant Certificate of the same tenor and for a like aggregate number of Warrants.  At the written request of such registered Warrantholder, the new Warrant Certificate so issued shall be retained by the Warrant Agent as having been surrendered for exercise, in lieu of delivery thereof to such Warrantholder, and shall be deemed for purposes of Section 3.2 to have been surrendered for exercise on the date the conditions specified in clauses (a) or (b) of the preceding sentence were first satisfied.

Upon the issuance of any new Warrant Certificate under this Section 7, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and other expenses (including the fees and expenses of the Warrant Agent and of counsel to the Company) in connection therewith.

Every new Warrant Certificate executed and delivered pursuant to this Section 7 in lieu of any lost, wrongfully taken or destroyed Warrant Certificate shall constitute an additional contractual obligation of the Company, whether or not the allegedly lost, wrongfully taken or destroyed Warrant Certificate shall be at any time enforceable by anyone, and shall be entitled to the benefits of this Agreement equally and proportionately with any and all other Warrant Certificates duly executed and delivered hereunder.

The provisions of this Section 7 are exclusive and shall preclude (to the extent lawful) all other rights or remedies with respect to the replacement of mutilated, lost, wrongfully taken, or destroyed Warrant Certificates.

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8.           Reservation and Authorization of Common Units.

The Company covenants that, for the duration of the Exercise Period, the Company will at all times reserve and keep available, from its authorized and unissued Common Units solely for issuance and delivery upon the exercise of the Warrants and, in respect of such exercise, free of preemptive rights, such number of Common Units as from time to time shall be issuable upon the exercise in full of all outstanding Warrants.  The Company further covenants that it shall, from time to time, take all steps necessary to increase the authorized number of Common Units if at any time the authorized number of Common Units remaining unissued would otherwise be insufficient to allow delivery of all the Common Units then deliverable upon the exercise in full of all outstanding Warrants.  The Company covenants that all Common Units issuable upon exercise of the Warrants will, upon issuance, be duly and validly issued, fully paid and nonassessable.  The Company shall take all such actions as may be necessary to ensure that all such Common Units may be so issued without violation of any applicable law or governmental regulation or, if applicable, any requirements of any domestic stock exchange upon which the Common Units may be listed (except for official notice of issuance which shall be immediately delivered by the Company upon each such issuance).

9.           Transfers; Warrant Transfer Books.

9.1.    Corporate Agency Office.  The Warrant Agent will maintain an office (the “Corporate Agency Office”) in the United States of America, where Warrant Certificates may be surrendered for registration of Transfer or exchange in accordance with this Section 9 and where Warrant Certificates may be surrendered for exercise of Warrants evidenced thereby, which office is 6201 15^th Avenue, Brooklyn, New York 11219 on the Original Issuance Date.  The Warrant Agent will give prompt written notice to all Warrantholders of any change in the location of such office.

9.2.    Warrant Register.  Subject to the Company’s option in Section 2.1, the Warrant Certificates evidencing the Warrants shall initially only be issued in electronic entry registered form.  The Company shall cause to be kept at the office of the Warrant Agent designated for such purpose a warrant register (the “Warrant Register”) in which, subject to such reasonable regulations as the Warrant Agent may prescribe and such regulations as may be prescribed by law, the Company shall provide for the registration of Warrant Certificates and of transfers or exchanges of Warrant Certificates as herein provided.

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9.3.    Transfers.  (a) Each Warrantholder agrees that (i) it shall not, directly or indirectly, whether by merger, consolidation, division or otherwise, and whether by or through one or more Affiliates, transfer, sell, assign, pledge, hypothecate or otherwise dispose of (any such transaction, a “Transfer”), its Warrants except (A) in compliance with the Securities Act, (B) in compliance with any other applicable securities or “blue sky” laws, (C) in accordance with the terms and conditions of this Agreement, and (D) to an Affiliate of such Warrantholder or to an unaffiliated, third-party transferee which, unless otherwise approved by the Board, as of the expected date of such Transfer, (w) does not own ten percent (10%) or more of the outstanding capital stock or other equity interests of any Person engaged in the Business, (x) is not reasonably likely to own ten percent (10%) or more of the outstanding capital stock or other equity interests of any Person engaged in the Business within the next twelve (12) months, (y) is not a director, officer or employee of any Person engaged in the Business and (z) is not a Person engaged in the Business, or an Affiliate thereof, and such transferee must provide a certification to the effect that it satisfies the requirements set forth in this clause (D) prior to any such potential Transfer; (ii) such Warrantholder may Transfer its Warrants to only one holder of record within the meaning of Rule 12g5-1 of the Exchange Act, (iii) no Transfer shall be for less than all the Warrants held by such Warrantholder, and (iv) if such Warrantholder has previously exercised part of its Warrants pursuant to Section 3.2 (including, if and to the extent permitted by the rules and procedures of the Warrant Agent, any exercise in part of a single Warrant), it shall not be permitted to Transfer its remaining Warrants (or any fractional Warrant), provided, however, that for each of clauses (ii) – (iv), such Warrantholder may seek the consent of the Company for a Transfer subject to clause (ii), (iii) or (iv), which such consent the Company may withhold, in its sole discretion, if the Company believes such Transfer would increase the risk that the Company could be required to, after giving effect to the exercise, conversion or exchange of all securities convertible into, or exercisable or exchangeable for, Common Units (assuming, for purposes of this sentence, that all outstanding Warrants were simultaneously exercised in full), register the Common Units under Section 12(g) of the Exchange Act, or otherwise be subject to the reporting obligations under Section 15(d) of the Exchange Act; and (v) no Transfer shall be made if such Transfer could, or could reasonably be expected to, cause the Company to, after giving effect to the exercise, conversion or exchange of all securities convertible into, or exercisable or exchangeable for, Common Units (assuming, for purposes of this sentence, that all outstanding Warrants were simultaneously exercised in full), register the Common Units under Section 12(g) of the Exchange Act, or otherwise be subject to the reporting obligations under Section 15(d) of the Exchange Act.

(b)      No Warrantholder who is, or upon exercise of Warrants held by it pursuant to this Agreement will be, a Substantial Member may transfer any Warrants, and no Warrantholder may transfer any Warrants to any Person who is a Substantial Member or, as a result of such transfer (assuming, for purposes of this sentence, that such transferred Warrants were simultaneously exercised in full) would become a Substantial Member, without consent of the Board. For purposes of this Section 9.3(b), “Substantial Member” means a Person with a Percentage Equity Ownership of 4.98% or more, and “Percentage Equity Ownership” means the percentage equity ownership interest in the Company beneficially owned by any Person for purposes of section 382 of the Internal Revenue Code of 1986, as amended, as determined in accordance with Treasury Regulation sections 1.382-2T(g), (h), (j) and (k) and 1.382-4; provided, that (1) for purposes of applying Treasury Regulation section 1.382-2T(k)(2), the Company shall be treated as having “actual knowledge” of the beneficial ownership of all outstanding equity securities of the Company (including any warrants, rights or options related to such equity securities) that would be attributed to any Person, and (2) for the sole purpose of determining the Percentage Equity Ownership of any entity (and not for the purpose of determining the Percentage Equity Ownership of any other Person), equity securities of the Company held by such entity shall not be treated as no longer owned by such entity pursuant to Treasury Regulation section 1.382-2T(h)(2)(i)(A); provided, further, that for purposes of determining the Percentage Equity Ownership of any Person (x) that owns Warrants, the Warrants held by such Person shall be treated as exercised, but the Warrants held by other Persons shall not be treated as exercised or (y) that has received an award pursuant to an Equity Incentive Plan, or any successive incentive plan, such award shall be treated as exercised, but the awards held by other Persons shall not be treated as exercised.

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(c)      The Warrant Agent shall not effect any Transfer in accordance with the terms of this Section 9.3 until the transferring Warrantholder has delivered to the Warrant Agent and the Company an executed certificate substantially in the form attached hereto as Exhibit C (the “Transfer Certificate”). At the request of the Company, any Warrantholder proposing to Transfer its Warrants, and any proposed transferor or transferee and any Person controlling, controlled by or under common control with the proposed transferor or transferee, shall provide such additional information as the Company may reasonably request as may be necessary from time to time in order to determine compliance with this Section 9.3. Upon receipt of the Transfer Certificate from a transferring Warrantholder, the Warrant Agent shall promptly send the Company a copy of such Transfer Certificate, and upon the Company’s reasonably prompt confirmation to the Warrant Agent that the Transfer of Warrants described in such Transfer Certificate would not violate the terms of this Agreement and, if applicable, the Company’s consent of a Transfer described in Section 9.3(a), the Warrant Agent shall process the Transfer of Warrants in accordance with this Agreement.

(d)     Any attempt to Transfer any Warrants not in compliance with this Agreement or any Transfer pursuant to which the Transfer Certificate contained false or incorrect representations by the Warrantholder shall be null and void ab initio, and the Company and the Warrant Agent shall not give any effect in their respective records to such attempted Transfer.

9.4.    Exchanges.  At the option of the Warrantholder, Warrant Certificates may be exchanged at the Corporate Agency Office upon payment of the charges hereinafter provided for other Warrant Certificates evidencing a like aggregate number of Warrants.  Whenever any Warrant Certificates are so surrendered for exchange, the Company shall execute, and the Warrant Agent shall countersign and deliver, the Warrant Certificates of the same tenor and evidencing the same aggregate number of Warrants as evidenced by the Warrant Certificates surrendered by the Warrantholder making the exchange; provided, that the Warrant Agent shall have received (a) a written instruction of exchange in form satisfactory to the Warrant Agent, duly executed by the Warrantholder thereof or by his attorney, duly authorized in writing, and (b) surrender of the Warrant Certificate(s) representing the Warrants, duly endorsed for transfer.

9.5.    Valid Obligations.  All Warrant Certificates issued upon any registration of transfer or exchange of Warrant Certificates shall be the valid obligations of the Company, evidencing the same obligations, and entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered for such registration of transfer or exchange.

9.6.    No Service Charge.  No service charge shall be made for any registration of transfer or exchange of Warrant Certificates; provided, however, the Company may require payment of a sum sufficient to cover any stamp or other tax or other charge that may be imposed in connection with any registration of transfer of Warrant Certificates.  The Warrant Agent shall forward any such sum collected by it to the Company or to such Persons as the Company shall specify by written notice.

9.7.    Reports of Ownership.  The Warrant Agent shall, upon request of the Company from time to time, deliver to the Company such reports of registered ownership of the Warrants and such records of transactions with respect to the Warrants and the Common Units as the Company may request.  The Warrant Agent shall also make available to the Company for inspection by the Company’s agents or employees, from time to time as the Company may request, such original books of accounts and records maintained by the Warrant Agent in connection with the issuance and exercise of Warrants hereunder, such inspections to occur at the Corporate Agency Office during normal business hours.

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9.8.    Copies; Notice.  The Warrant Agent shall keep copies of this Agreement and any notices given to Warrantholders hereunder available for inspection by the Warrantholders during normal business hours at the Corporate Agency Office.  The Company shall supply the Warrant Agent from time to time with such numbers of copies of this Agreement as the Warrant Agent may reasonably request.

10.          Other Rights of Warrantholders.

10.1.  LLC Agreement.  Any holder of Common Units issued upon the exercise of any Warrant shall execute and deliver to the Company a joinder to the LLC Agreement in connection therewith; provided, however, that notwithstanding the failure of any such holder to execute and deliver such joinder, such holder shall still be deemed to be a party to the LLC Agreement upon exercise of any Warrant.  The Company covenants and agrees that it shall not enter into any amendment, modification or waiver of the LLC Agreement that adversely affects the rights available to Warrantholders under the LLC Agreement as compared with the rights of holders of outstanding Common Units, in each case, without the consent of Required Warrantholders.

10.2.  Information Rights.

(a)     Financial Statements.  The Company will furnish to each Warrantholder the following: (i) within forty-five (45) days following the conclusion of each of the first three fiscal quarters of each of the Company’s fiscal years ending after the date hereof, quarterly unaudited consolidated financial statements of the Company and its Subsidiaries (except (x) with respect to the fiscal quarter ending June 30, 2020, within seventy-five (75) days of the end of such fiscal quarter and (y) with respect to the fiscal quarter ending September 30, 2020, within sixty (60) days of the end of such fiscal quarter); and (ii) within one hundred and twenty (120) days after the end of each fiscal year, annual audited consolidated financial statements of the Company and its Subsidiaries.  Any Warrantholder entitled to receive any of the foregoing financial information may elect to not receive such information, for any reason or no reason, by notifying the Company in writing.  Notwithstanding anything to the contrary herein, no Warrantholder will be furnished with or otherwise entitled to receive any of the foregoing financial information and shall not be permitted to share with any bona fide potential transferees described in Section 10.2(b)(i)(C) if such Warrantholder or potential transferee, at the time such information is to be distributed, (i) owns ten percent (10%) or more of the outstanding capital stock or other equity interests of any Person engaged in the Business, (ii) is reasonably likely to own ten percent (10%) or more of the outstanding capital stock or other equity interests of any Person engaged in the Business within the next twelve (12) months, (iii) is a director, officer or employee of any Person engaged in the Business or (iv) is a Person engaged in the Business, or an Affiliate thereof, and each Warrantholder, upon request, and potential transferee, prior to receipt of such information, must certify to the Company it is in compliance with this Section 10.2(a).  Each Warrantholder shall be liable for any action of its Representatives or recipients that would constitute a violation of Section 10.2(b) if such Representative or recipient were party to this Agreement.

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(b)      Confidentiality.

(i)      Each Warrantholder acknowledges that any notices or information furnished, including verbally, pursuant to this Agreement (the “Confidential Information”) is confidential and competitively sensitive.  Each Warrantholder shall use, and shall cause any Person to whom Confidential Information is disclosed pursuant to clause (A) below to use, the Confidential Information only in connection with its investment in the Common Units or other securities of the Company and not for any other purpose (including to disadvantage competitively the Company or any other Warrantholder).  Each Warrantholder shall not disclose any Confidential Information to any Person, except that Confidential Information may be disclosed:

(A)    to the Warrantholder’s Representatives in the normal course of the performance of their duties for such Warrantholder (it being understood that such Representatives shall be informed by the Warrantholder of the confidential nature of such information and shall be directed to treat such information in accordance with this Section 10.2(b));

(B)     to the extent requested or required by applicable law, rule or regulation; provided, that the Warrantholder shall give the Company prompt written notice of such request(s), to the extent practicable, and to the extent permitted by law so that the Company may, at its sole expense, seek an appropriate protective order or similar relief (and the Warrantholder shall cooperate with such efforts by the Company, and shall in any event make only the minimum disclosure required by such law, rule or regulation and shall use commercially reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such information);

(C)    to any Person to whom the Warrantholder is contemplating a bona fide Transfer, subject to the transfer restrictions contained in Section 9.3, of its Warrants permitted in accordance with the terms hereof; provided that such Person is not prohibited from receiving such information pursuant to this Section 10.2 and, prior to such disclosure, such potential transferee is advised of the confidential nature of such information and executes a non-disclosure agreement in a form approved by the Board and which agreement is independently enforceable by the Company;

(D)    to any governmental, regulatory or self-regulatory authority or rating agency to which the Warrantholder or any of its Affiliates is subject or with which it has regular dealings in connection with any routine request of or any routine examination by such authority or agency, as long as such authority or agency is advised of the confidential nature of such information;

(E)    in connection with the Warrantholder’s or the Warrantholder’s Affiliates’ normal fund raising, marketing, informational or reporting activities; provided, that prior to such disclosure the Persons to whom such information is disclosed are advised of the confidential nature of such information and execute a non-disclosure agreement in a form approved by the Board and which is independently enforceable by the Company; or

(F)     if the prior written consent of the Company shall have been obtained.

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(ii)     Nothing contained herein shall prevent the use (subject, to the extent possible, to a protective order) of Confidential Information in connection with the assertion or defense of any claim by or against the Company or any Warrantholder.  The restrictions contained in this Section 10.2(b) shall terminate, with respect to any Warrantholder, twenty-four (24) months following the date on which such Warrantholder ceases to own any Warrants or Common Units issued upon exercise of any Warrants.

(iii)     Confidential Information, with respect to any Warrantholder, does not include information that: (a) is or becomes generally available to the public (including as a result of any information filed or submitted by the Company with the Commission) other than as a result of a disclosure by such Warrantholder or its Representatives in violation of any confidentiality provision of this Agreement or any other applicable agreement; (b) is or was available to such Warrantholder or its Representatives on a non-confidential basis prior to its disclosure to such Warrantholder or its Representatives by the Company; or (c) was or becomes available to such Warrantholder or its Representatives on a non-confidential basis from a source other than the Company, which source is or was (at the time of receipt of the relevant information) not, to the best of such Warrantholder’s or its Representatives’ knowledge, bound by a confidentiality agreement with (or other confidentiality obligation to) the Company or another Person.

(iv)     Anything contained herein to the contrary notwithstanding, if any Warrantholder, on the one hand, and the Company or any Subsidiary, on the other hand, shall have entered into an employment, severance, confidentiality or similar agreement which provides for the confidentiality of Confidential Information or rights to intellectual property, then the provisions of this Section 10.2(b) shall, as to such Warrantholder, be superseded by such provisions of such employment, severance, confidentiality or similar agreement for so long as such agreement is in effect.

10.3.  No Redemption.  The Warrants shall not be subject to redemption by the Company or any other Person; provided, that the Warrants may be acquired by means other than a redemption, whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws, so long as such acquisition does not otherwise violate the terms of this Warrant Agreement.

10.4.  No Voting or Distribution Rights.  Each Warrantholder shall be deemed to have represented and acknowledged that it is not, by reason of the ownership or possession of a Warrant or the Warrant Certificate representing the same, a unitholder of the Company, and no Warrantholder shall have or exercise any rights by virtue thereof as a holder of outstanding Common Units, including, without limitation, the right to vote, to receive distributions and other dividends as a holder of outstanding Common Units or to receive notice of, or attend, meetings or any other proceedings of the holders of outstanding Common Units.  Except as may be specifically provided for herein:

(a)      the consent of any Warrantholder shall not be required with respect to any action or proceeding of the Company;

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(b)     no such Warrantholder, by reason of the ownership or possession of a Warrant or the Warrant Certificate representing the same, shall have any right to receive any cash distributions, unit distributions, allotments or rights or other distributions paid, allotted or distributed or distributable to the holders of outstanding Common Units prior to, or for which the relevant record date preceded, the Exercise Date of such Warrant; and

(c)      no such Warrantholder shall have any right not expressly conferred hereunder or under, or by applicable law with respect to, the Warrant(s) held by such Warrantholder.

10.5.  Rights of Action.  All rights of action against the Company in respect of this Agreement, except rights of action vested in the Warrant Agent, are vested in the Warrantholders, and any Warrantholder, without the consent of the Warrant Agent or any other Warrantholder, may, in such Warrantholder’s own behalf and for such Warrantholder’s own benefit, enforce and may institute and maintain any suit, action or proceeding against the Company suitable to enforce, or otherwise in respect of, such Warrantholder’s rights provided in this Agreement.

10.6.  Treatment of Holders of Warrant Certificates.  Every Warrantholder, by accepting any Warrant, consents and agrees with the Company, with the Warrant Agent and with every subsequent holder of such Warrant that, prior to due presentment of such Warrant for registration of transfer in accordance with Section 9.3, the Company and the Warrant Agent may treat the Person in whose name the Warrant is registered as the owner thereof in the Warrant Register for all purposes and as the Person entitled to exercise the rights granted under the Warrants, and neither the Company, the Warrant Agent nor any agent thereof shall be affected by any notice to the contrary.

10.7.  Communications to Warrantholders.

(a)      If any Warrantholder applies in writing to the Warrant Agent and such application states that the applicant desires to communicate with other Warrantholders with respect to its rights under this Warrant Agreement or under the Warrants, then the Warrant Agent shall, within five (5) Business Days after the receipt of such application, and upon payment to the Warrant Agent by such applicant of the reasonable expenses of preparing such list, provide to such applicant a list of the names and addresses of all Warrantholders as of the most recent practicable date.

(b)     Every Warrantholder, by receiving and holding any Warrant, agrees with the Company and the Warrant Agent that neither the Company nor the Warrant Agent nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of Warrantholders in accordance with Section 10.7(a).

11. Concerning the Warrant Agent.

11.1.  Nature of Duties and Responsibilities Assumed.  The Company hereby appoints the Warrant Agent to act as agent of the Company as set forth in this Agreement.  The Warrant Agent hereby accepts the appointment as agent of the Company and agrees to perform that agency upon the terms and conditions set forth in this Agreement and in the Warrants or as the Company and the Warrant Agent may hereafter agree, by all of which the Company and the Warrantholders, by their acceptance thereof, shall be bound; provided, however, that the terms and conditions contained in the Warrants are subject to and governed by this Agreement or any other terms and conditions hereafter agreed to by the Company and the Warrant Agent.

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The Warrant Agent shall not, by countersigning any Warrant Certificate or by any other act hereunder, be deemed to make any representations as to validity or authorization of (i) the Warrants or the Warrant Certificates (except as to its countersignature thereon), (ii) any securities or other property delivered upon exercise of any Warrant, (iii) the accuracy of the computation of the number or kind or amount of units or other securities or other property deliverable upon exercise of any Warrant, (iv) the independence of any Independent Financial Expert or (v) the correctness of any of the representations of the Company made in such certificates that the Warrant Agent receives.  The Warrant Agent shall not at any time have any duty to calculate or determine whether any facts exist that may require any adjustments pursuant to Section 5 hereof with respect to the kind and amount of units or other securities or any property issuable to Warrantholders upon the exercise of Warrants required from time to time.  The Warrant Agent shall have no duty or responsibility to determine the accuracy or correctness of such calculation or with respect to the methods employed in making the same.  The Warrant Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any Common Units or of any securities or property which may at any time be issued or delivered upon the exercise of any Warrant or upon any adjustment pursuant to Section 5 hereof, and it makes no representation with respect thereto.  The Warrant Agent shall not be responsible for any failure of the Company to make any cash payment or to issue, transfer or deliver any Common Units or unit certificates or other securities or property upon the surrender of any Warrant Certificate for the purpose of exercise or upon any adjustment pursuant to Section 5 hereof or to comply with any of the covenants of the Company contained in Section 5 hereof.

The Warrant Agent shall not (a) be liable for any recital or statement of fact contained herein or in the Warrant Certificates or for any action taken, suffered or omitted by it in good faith on the reasonable belief that any Warrant Certificate or any other documents or any signatures are genuine or properly authorized, (b) be responsible for any failure on the part of the Company to comply with any of its covenants and obligations contained in this Agreement or in the Warrant Certificates or (c) be liable for any act or omission in connection with this Agreement except for its own gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment).

The Warrant Agent is hereby authorized to accept and is protected in accepting instructions with respect to the performance of its duties hereunder by Company Order and to apply to any such officer named in such Company Order for instructions (which instructions will be promptly given in writing when requested), and the Warrant Agent shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions in any Company Order.

The Warrant Agent may execute and exercise any of the rights and powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys, agents or employees, provided, however, reasonable care has been exercised in the selection and in the continued employment of any such attorney, agent or employee.  The Warrant Agent shall not be under any obligation or duty to institute, appear in or defend any action, suit or legal proceeding in respect hereof, unless first indemnified to its satisfaction, but this provision shall not affect the power of the Warrant Agent to take such action as the Warrant Agent may consider proper, whether with or without such indemnity.  The Warrant Agent shall promptly notify the Company in writing of any claim made or action, suit or proceeding instituted against it arising out of or in connection with this Agreement.

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The Company shall perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further acts, instruments and assurances as may reasonably be required by the Warrant Agent in order to enable it to carry out or perform its duties under this Agreement.

The Warrant Agent shall act solely as agent of the Company hereunder and does not assume any obligation or relationship of agency or trust for or with any of the Warrantholders or any beneficial owners of Warrants.  The Warrant Agent shall not be liable except for the failure to perform such duties as are specifically set forth herein or specifically set forth in the Warrants, and no implied covenants or obligations shall be read into this Agreement against the Warrant Agent whose duties and obligations shall be determined solely by the express provisions hereof or the express provisions of the Warrants.

11.2.  Right to Consult Counsel.  The Warrant Agent may at any time consult with legal counsel satisfactory to it (who may be legal counsel for the Company), and the Warrant Agent shall incur no liability or responsibility to the Company or to any Warrantholder for any action taken, suffered or omitted by it in good faith in accordance with the written opinion or advice of such counsel.

11.3.  Compensation, Reimbursement and Indemnification.  The Company agrees to pay the Warrant Agent from time to time compensation relating to its services hereunder as set forth on Exhibit D hereto and to reimburse the Warrant Agent for reasonable and documented expenses and disbursements, including reasonable and documented counsel fees incurred in connection with the administration of this Agreement.  The Company further agrees to indemnify the Warrant Agent, its employees, officers and directors (collectively, the “Indemnified Parties” and each an “Indemnified Party”), for and save them harmless against any losses, liabilities or reasonable expenses arising out of or in connection with the acceptance and administration of this Agreement, including the reasonable and documented costs, legal fees and expenses of defending any claim of such liability, except that the Company shall have no liability hereunder to the extent that any such loss, liability or expense results from an Indemnified Party’s own gross negligence, bad faith, fraud or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable judgment).

11.4.  Warrant Agent May Hold Company Securities.  The Warrant Agent and any unitholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the warrants or other securities of the Company or its Affiliates, become pecuniarily interested in transactions in which the Company or its Affiliates may be interested, contract with or lend money to the Company or its Affiliates or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement.  Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.

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11.5.   Resignation and Removal; Appointment of Successor.

(a)   The Warrant Agent may resign its duties and be discharged from all further duties and liability hereunder (except liability arising as a result of the Warrant Agent’s own gross negligence, bad faith, fraud or willful misconduct) after giving thirty (30) days’ prior written notice to the Company.  The Company may remove the Warrant Agent upon thirty (30) days’ written notice, and the Warrant Agent shall thereupon in like manner be discharged from all further duties and liabilities hereunder (except liability arising as a result of the Warrant Agent’s own gross negligence, bad faith, fraud or willful misconduct).  The Warrant Agent shall, at the expense of the Company, cause notice to be given in accordance with Section 12.1(b) to each Warrantholder of said notice of resignation or notice of removal, as the case may be.  Upon such resignation or removal, the Company shall appoint in writing a new Warrant Agent.  If the Company shall fail to make such appointment within a period of thirty (30) calendar days after it has been notified in writing of such resignation by the resigning Warrant Agent or after such removal, then the Warrantholder may apply to any court of competent jurisdiction for the appointment of a new Warrant Agent.  Any new Warrant Agent, whether appointed by the Company or by such a court, shall be a corporation or other legal entity doing business under the laws of the United States or any state thereof in good standing, authorized under such laws to act as Warrant Agent, and having a combined capital and surplus of not less than $25,000,000.  The combined capital and surplus of any such new Warrant Agent shall be deemed to be the combined capital and surplus as set forth in the most recent annual report of its condition published by such Warrant Agent prior to its appointment, provided, however, such reports are published at least annually pursuant to law or to the requirements of a Federal or state supervising or examining authority.  After acceptance in writing of such appointment by the new Warrant Agent, it shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as the Warrant Agent, without any further assurance, conveyance, act or deed; but if for any reason it shall be reasonably necessary or expedient to execute and deliver any further assurance, conveyance, act or deed, the same shall be done at the reasonable expense of the Company and shall be legally and validly executed and delivered by the resigning or removed Warrant Agent.  Not later than the effective date of any such appointment, the Company shall file notice thereof with the resigning or removed Warrant Agent.  Failure to give any notice provided for in this Section 11.5(a), however, or any defect therein, shall not affect the legality or validity of the resignation of the Warrant Agent or the appointment of a new Warrant Agent as the case may be.

(b)      Any corporation or other legal entity into which the Warrant Agent or any new Warrant Agent may be merged, or any corporation resulting from any consolidation to which the Warrant Agent or any new Warrant Agent shall be a party, shall be a successor Warrant Agent under this Agreement without any further act, provided that such corporation would be eligible for appointment as successor to the Warrant Agent under the provisions of Section 11.5(a).  Any such successor Warrant Agent shall promptly cause notice of its succession as Warrant Agent to be given in accordance with Section 12.1(b) to each Warrantholder at such Warrantholder’s last address as shown on the Warrant Register.

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12.         Notices.

12.1.  Notices Generally.

(a)      Any request, notice, direction, authorization, consent, waiver, demand or other communication permitted or authorized by this Agreement to be made upon, given or furnished to or filed with the Company or the Warrant Agent by the other party hereto or by any Warrantholder shall be sufficient for every purpose hereunder if in writing (including electronic mail communication) and sent via electronic, registered or certified mail, or delivered by hand (including by courier service) as follows:

If to the Company, to it at:

Internap Holding LLC

12120 Sunset Hills Road

Suite 330

Reston, VA 20190

Attn:  Secretary

or

If to the Warrant Agent, to it at:

American Stock Transfer & Trust Company, LLC

6201 15th Avenue

Brooklyn, NY 11219

Attn: Corporate Actions or Reorganizations Department

Email: legalteamAST@astfinancial.com

or, in either case, such other address as shall have been set forth in a notice delivered in accordance with this Section 12.1(a).

All notices and other communications hereunder shall be deemed duly given (i) upon delivery, if served by personal delivery upon the Person for whom it is intended, (ii) on the third (3rd) Business Day after the date mailed if delivered by registered or certified mail, return receipt requested, postage prepaid, (iii) on the following Business Day if delivered by a nationally-recognized, overnight, air courier or (iv) when delivered or, if sent after the Close of Business, on the following Business Day if sent by email, in each case, to the address set forth on such Person’s signature page hereto or to such other address as may be designated in writing, in the same manner, by such Person.

(b)    Where this Agreement provides for notice to Warrantholders of any event or delivery of any information or documents to Warrantholders, such notice or delivery shall be sufficiently given (unless otherwise herein expressly provided) if in writing (including electronic mail communication) and sent via electronic, registered or certified mail, or delivered by hand (including by courier service), to each Warrantholder affected by such event or entitled to receive such delivery, at the address of such Warrantholder as it appears in the Warrant Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice or the making of such delivery.  Neither the failure to provide any such notice or delivery, nor any defect in any notice or delivery so otherwise provided, to any particular Warrantholder shall affect the sufficiency of such notice or delivery with respect to other Warrantholders.  Such notice or delivery may be waived in writing by the Person entitled to receive such notice or delivery, either before or after the event, and such waiver shall be the equivalent of such notice or delivery.

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12.2.  Required Notices to Warrantholders.  In the event the Company shall propose:

(a)      to make or issue any distribution or dividend to holders of outstanding Common Units or other units, other securities, cash, assets or property (including any Property Distribution);

(b)      to effect any capital reorganization, consolidation or merger or amalgamation of the Company with or into another Person or of another Person into the Company, sale, transfer or other disposition of all or substantially all of the Company’s assets to any other Person, or other similar transaction, or any Change-of-Control Transaction or Sale Transaction;

(c)      to effect the voluntary or involuntary dissolution, liquidation or winding-up of the Company;

(d)      to effect any reclassification of its Common Units; or

(e)      to commence any tender offer (including any exchange offer) for the purchase (including the acquisition pursuant to an exchange offer) of all or any portion of the outstanding Common Units (or shall amend any such offer), then, and in each such case, the Company shall cause to be filed with the Warrant Agent and shall give to each Warrantholder, in accordance with Section 12.1(b), a notice of such proposed action.  Such notice shall: (i) in the case of any distribution or dividend covered by the foregoing clause (a), specify the date on which a record is to be taken for the purposes of any such distribution or dividend; (ii) in the case of Company actions covered by the foregoing clauses (b) through (d), specify the date on which such reclassification or other transaction, Change-of-Control Transaction, Sale Transaction, liquidation, dissolution or winding up is expected to become effective and the date as of which it is expected that holders of outstanding Common Units of record shall be entitled to exchange their Common Units for securities, cash or other property deliverable upon such reclassification or other transaction, Change-of-Control Transaction, Sale Transaction, liquidation, dissolution or winding up; or (iii) in the case of a tender offer covered by the foregoing clause (e), specify the date on which such tender offer commenced, the date on which such tender offer is scheduled to expire unless extended, the consideration offered and the other material terms thereof (or the material terms of any amendment thereto).  Such notice shall be given, (i) in the case of any distribution or dividend covered by the foregoing clause (a) above, at least ten (10) days prior to the record date for determining holders of outstanding Common Units for purposes of such action, or (ii) in the case of any other action covered by this Section 12.2, at least twenty (20) days prior to the applicable effective or expiration date specified above.

If at any time the Company shall cancel any of the proposed transactions for which notice has been given under this Section 12.2 prior to the consummation thereof, the Company shall give each Warrantholder prompt notice of such cancellation in accordance with Section 12.1(b) hereof.

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13.         Inspection.

The Warrant Agent shall cause a copy of this Agreement to be available at all reasonable times at the office of the Warrant Agent for inspection by the Warrantholders.  The Warrant Agent may require any Warrantholder to submit his, her or its Warrant Certificate(s), if any, for inspection by it.

14.          Amendments.

The Company and the Warrant Agent may, without the consent or concurrence of any of the Warrantholders, by supplemental agreement or otherwise, amend this Agreement for the purpose of making any changes or corrections in this Agreement that (a) are required to cure any ambiguity or to correct or supplement any defective or inconsistent provision or clerical omission or mistake or manifest error herein contained, (b) add to the covenants and agreements of the Company in this Agreement further covenants and agreements of the Company thereafter to be observed, or surrender any rights or powers reserved to or conferred upon the Company in this Agreement or (c) may be required to facilitate compliance with the rules and procedures of the Warrant Agent; provided, however, that in each case such amendment shall not adversely affect the rights or interests of the Warrantholders hereunder in any respect.  This Agreement may otherwise be amended by the Company and the Warrant Agent with the consent of Required Warrantholders.

The Warrant Agent shall join with the Company in the execution and delivery of any such amendment unless such amendment affects the Warrant Agent’s own rights, duties or immunities hereunder, in which case the Warrant Agent may, but shall not be required to, join in such execution and delivery.  Upon execution and delivery of any amendment pursuant to this Section 14, such amendment shall be considered a part of this Agreement for all purposes and every Warrantholder theretofore or thereafter countersigned and delivered hereunder shall be bound thereby.

Promptly after the execution by the Company and the Warrant Agent of any such amendment, the Company shall give notice to the Warrantholders, providing a copy of such amendment, in accordance with the provisions of Section 12.1(b).  Any failure of the Company to mail such notice or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment.

15.          Waivers.

The Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if (a) the Company has obtained the written consent of the Required Warrantholders for such waiver, and (b) if an amendment to this Agreement is necessary for such waiver, any consent required pursuant to Section 14 has been obtained.

16.          Equitable Relief.

Each of the Company and each of the Warrantholders acknowledges that a breach or threatened breach by such party of any of its obligations under this Agreement or any Warrant would give rise to irreparable harm to the other for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by the Company or any Warrantholder(s) of any such obligations, the other party shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction.

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17.          Headings.

The section headings contained in this Agreement are inserted for convenience only and will not affect in any way the meaning or interpretation of this Agreement.

18.         Counterparts.

This Agreement may be executed in two or more counterparts, each of which will be deemed to be an original, but all of which together constitute one and the same instrument.

19.          Severability.

The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision hereof will not affect the validity or enforceability of the other provisions hereof; provided, that if any provision of this Agreement, as applied to any party or to any circumstance, is adjudged by a court or governmental body not to be enforceable in accordance with its terms, the parties agree that the court or governmental body making such determination will have the power to modify the provision in a manner consistent with its objectives such that it is enforceable, and/or to delete specific words or phrases, and in its reduced form, such provision will then be enforceable and will be enforced.

20.          Persons Benefiting.

This Agreement shall be binding upon and inure to the benefit of the Company, the Warrantholders and the Warrant Agent, and their respective successors and assigns.  Nothing in this Agreement, express or implied, is intended to confer upon any person other than the Company, the Warrant Agent and the Warrantholders any rights or remedies under or by reason of this Agreement or any part hereof.  Each Warrantholder, by acceptance of a Warrant, agrees to all of the terms and provisions of this Agreement applicable thereto.

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21.          Applicable Law.

THIS AGREEMENT, EACH WARRANT ISSUED HEREUNDER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO AND THERETO, INCLUDING THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEABILITY THEREOF, SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.  Each of the Company, each Warrantholder and the Warrant Agent agrees that it shall bring any litigation with respect to any claim arising out of or related to this Agreement or any Warrant, exclusively in the United States District Court for the Southern District of New York (and if jurisdiction in the United States District Court for the Southern District of New York shall be unavailable, any state court sitting in the State of New York) (together with the appellate courts thereof, the “Chosen Courts”).  In connection with any claim arising out of or related to this Agreement or any Warrant, each of the Company, each Warrantholder and the Warrant Agent hereby irrevocably and unconditionally (a) submits to the exclusive jurisdiction of the Chosen Courts, (b) waives any objection that such Person may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to this Agreement or any Warrant in the Chosen Courts, (c) waives any objection that the Chosen Courts are an inconvenient forum or as not having jurisdiction over either the Company, the Warrantholder or the Warrant Agent, (d) agrees that service of process in any such action or proceeding shall be effective if notice is given in accordance with this Agreement, although nothing contained in this Agreement shall affect the right to serve process in any other manner permitted by law, and (e) agrees not to seek a transfer of venue on the basis that another forum is more convenient.  Notwithstanding anything herein to the contrary, (x) nothing in this Section 21 shall prohibit any Person from seeking or obtaining orders for conservatory or interim relief from any court of competent jurisdiction and (y) each of the Company, each Warrantholder and the Warrant Agent agrees that any judgment issued by a Chosen Court may be recognized, recorded, registered or enforced in any jurisdiction in the world and waives any and all objections or defenses to the recognition, recording, registration or enforcement of such judgment in any such jurisdiction.

22.      Waiver of Trial by Jury.  EACH OF THE COMPANY, EACH WARRANTHOLDER AND THE WARRANT AGENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR ANY WARRANT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PERSON HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PERSON MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ANY WARRANT.  EACH OF THE COMPANY, EACH WARRANTHOLDER AND THE WARRANT AGENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PERSON UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PERSON MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PERSON HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

23.         Waiver of Certain Damages.  To the extent permitted by applicable law, each of the Company, each Warrantholder and the Warrant Agent agrees not to assert, and hereby waives, any claim against any other party, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any Warrant or any of the transactions contemplated hereby.

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24.         No Recourse.  Notwithstanding anything that may be expressed or implied in this Agreement, each Warrantholder and the Warrant Agent covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any of the former, current or future direct or indirect equity holders, controlling Persons, unitholders, directors, officers, employees, agents, Affiliates, members, financing sources, managers, general or limited partners or assignees, in each case, of the Company or any of its subsidiaries (collectively, but not including the Company itself, the “Non-Recourse Parties”),  whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any of the Non-Recourse Parties, as such, for any obligation or liability of the Company under this Agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or liabilities or their creation; provided, however, nothing in this Section 24 shall relieve or otherwise limit the liability of the Company for any breach or violation of its obligations under this Agreement or such agreements, documents or instruments.

[Signature page follows.]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written.

INTERNAP HOLDING LLC
By:	/s/ Michael Sicoli
	Name: Michael Sicoli
	Title: Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC, as Warrant Agent
By:	/s/ Michael Legregin
	Name: Michael Legregin
	Title: Senior Vice President

EX-10.4

Exhibit 10.4

Release Agreement

This Release Agreement (the “Agreement”), by and between Internap Corporation (the “Company”) and Peter Aquino (“You” or “Your”) (the Company and You collectively referred to as the “Parties”) is entered into and effective as of May 8, 2020 (the “Effective Date”).  You and the Company previously entered into that certain Employment Agreement, dated as of September 12, 2016, as amended from time to time (the “Employment Agreement.”)

1.         Separation Date.  The Parties acknowledge and agree that Your employment with the Company terminated effective as of May 8, 2020 (the “Separation Date”).  On the earliest to occur of (i) the next regularly schedule payroll date, (ii) the 30th day following the Separation Date, and (iii) any earlier date as required by applicable law, the Company will pay You all accrued but unpaid Base Salary (as defined in the Employment Agreement) as of the Separation Date.

2.         Separation Payments.  Provided that You satisfy the conditions of this Agreement, including the return of all Company property, and do not revoke this Agreement, the Company shall pay You separation payments equal to $2,222,000 in the aggregate, minus all applicable withholdings, including taxes and Social Security (the “Separation Payments”).  The Separation Payments shall be paid on the following schedule, in each case provided that you have returned an executed version of this Agreement to the Company’s Vice President, Human Resources Department, at 250 Williams Street NW, Suite E100, Atlanta Georgia, 30303 with all periods for revocation having expired prior to the 60th day following the Separation Date: (x) $1,652,000 will be paid in equal installments in accordance with the Company’s standard payroll practices, with the first such payment occurring on the first payroll date on or immediately following the 60th day following the Separation Date and the last such payment occurring on the payroll date on or immediately preceding December 31, 2020 and (y) $570,000 will be paid in a lump sum on the second anniversary of the Separation Date.  Notwithstanding the foregoing payment schedule, any unpaid Separation Payments, subject to compliance with the execution and non-revocation requirements of the preceding sentence, will become immediately payable upon the consummation of a Change of Control (as defined in the Employment Agreement) which occurs following the Separation Date.  Because You are no longer employed, Your rights to any particular employee benefit shall be governed by applicable law and the terms and provisions of the Company’s various employee benefit plans and arrangements.  Additionally, the Company will pay You a lump sum payment of $200,000 on the earliest to occur of (i) the first payroll date in March of 2021 (but no later than March 15, 2021) and (ii) the consummation of a Change of Control which occurs following the Separation Date, minus all applicable withholding, including taxes and Social Security, in full satisfaction of all amounts owed to You under the Long-Term Cash Award Agreement entered into by and between You and the Company as of April 8, 2019; following such payment, You will have no further rights to any payments or benefits under such Long-Term Cash Award Agreement.  You acknowledge that the Separation Date shall be the date used in determining benefits under all Company employee benefit plans. The Company’s obligation to provide You with the payments set forth above shall terminate immediately upon any material breach by You of this Agreement or any post-termination obligations to which You are subject.  You agree that the treatment of any equity-based compensation awards granted to You by Company under an Equity Agreement (as defined in the Employment Agreement) will be governed by the terms of such awards and such Equity Agreement. Following the Separation Date, the Company will not grant You any equity-based compensation awards.

Notwithstanding anything to the contrary set forth above, if You breach this Agreement, You acknowledge and agree that: (a) You shall return to the Company ninety-five percent (95%) of the Separation Payments within ten (10) calendar days after receiving notice from the Company of Your breach, as such amount is not deemed earned absent Your full compliance with this Agreement; and (b) the remaining five percent (5%) of the Separation Payments shall constitute full and complete consideration sufficient to support enforcement of this Agreement against You, including, but not limited to, enforcement of Your release of claims set forth below.

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3.           Release.  In exchange for the consideration set forth above, You release and discharge the Company¹ from any and all claims, charges, or lawsuits of any kind or nature (and will not cause any action or claim to be commenced) based upon facts, transactions, or omissions that occurred on or before the date You sign this Agreement, including, but not limited to, claims arising out of Your employment or the cessation of Your employment, claims arising out of the Employment Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461, claims to stock options, claims to the vesting of stock options, claims arising out of or relating to equity or other ownership interest in the Company, claims for breach of contract, claims for tort, negligent hiring, negligent retention, negligent supervision, negligent training, employment discrimination, retaliation, or harassment, as well as any other statutory or common law claims, at law or in equity, recognized under any federal, state, or local law. You also release any claims for unpaid back pay, sick pay, vacation pay, expenses, bonuses, claims arising out of or relating to equity or other ownership interest in the Company, claims to commissions, attorneys’ fees, or any other compensation.  You agree that You are not entitled to any additional payment or benefits from the Company, except as set forth in this Agreement. You further agree that You have suffered no harassment, retaliation, employment discrimination, or work-related injury or illness and that You do not believe that this Agreement is a subterfuge to avoid disclosure of sexual harassment or gender discrimination allegations or to waive such claims. You acknowledge and represent that You (i) have been fully paid (including, but not limited to, any overtime to which You are entitled, if any) for hours You worked for the Company, and (ii) do not claim that the Company violated or denied Your rights under the Fair Labor Standards Act.  Notwithstanding the foregoing, the release of claims set forth in this Section does not waive (x) Your right to receive benefits under the Company’s 401(k) or pension plans, if any, that either (a) have accrued or vested prior to the Effective Date, or (b) are intended, under the terms of such plans, to survive Your separation from the Company, (y) Your rights to be indemnified under the Indemnity Agreement (as defined in the Employment Agreement) or any other indemnification arrangement or D&O insurance policy applicable to You or (z) Your rights to enforce this Agreement.

4.         ADEA/OWBPA Waiver.  By agreeing to this provision, You release and waive any right or claim against the Company¹ arising out of Your employment or the termination of Your employment with the Company under the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 621 et seq. (“ADEA”), and the Older Workers Benefit Protection Act, 29 U.S.C. § 621 et seq. (“OWBPA”) (such release and waiver referred to as the “Waiver”). You understand and agree that, (i) this Agreement is written in a manner that You understand; (ii) You do not release or waive rights or claims that may arise after You sign this Agreement; (iii) You waive rights and claims You may have had under the OWBPA and the ADEA, but only in exchange for payments and/or benefits in addition to anything of value to which You are already entitled; (iv) You are advised to consult with an attorney before signing this Agreement; (v) You have twenty-one (21) calendar days from receipt of this Agreement to consider whether to sign it (the “Offer Period”).  The Parties agree that the Company may revoke this offer at any time.  However, if You sign before the end of the Offer Period, You acknowledge that Your decision to do so was knowing, voluntary, and not induced by fraud, misrepresentation, or a threat to withdraw, alter, or provide different terms prior to the expiration of the Offer Period.  You agree that changes or revisions to this Agreement, whether material or immaterial, do not restart the running of the Offer Period; (vi) You have seven (7) calendar days after signing this Agreement to revoke this Agreement (the “Revocation Period”).  If You revoke, the Agreement shall not be effective or enforceable and You shall not be entitled to the consideration set forth in this Agreement. To be effective, the revocation must be in writing and received by [the Company’s Vice President, Human Resources Department, at 250 Williams Street NW, Suite E100, Atlanta Georgia, 30303], prior to expiration of the Revocation Period; and (vii) this Waiver shall not become effective or enforceable until the Revocation Period has expired.

5.          No Admission of Liability. This Agreement is not an admission of liability by the Company.¹  The Company denies any liability whatsoever.  The Company enters into this Agreement to reach a mutual agreement concerning Your separation from the Company.

6.           Restrictive Covenants and Dispute Resolution.  You acknowledge and agree that You continue to be subject to the provisions of Articles V and VI and Section 7.2 of the Employment Agreement, the terms of which survive Your separation from the Company and are incorporated herein mutatis mutandis.

7.        Return of Company Property. You shall immediately return to the Company all of the Company’s property, including, but not limited to, computers, computer equipment, office equipment, mobile phone, keys, passcards, credit cards, confidential or proprietary lists (including, but not limited to, customer, supplier, licensor, and client lists), tapes, laptop computer, electronic storage device, software, computer files, marketing and sales materials, and any other property, record, document, or piece of equipment belonging to the Company.  You shall not (a) retain any copies of the Company’s property, including any copies existing in electronic form, which are in Your possession, custody, or control, or (b) destroy, delete, or alter any Company property, including, but not limited to, any files stored electronically, without the Company’s prior written consent. The obligations contained in this Section shall also apply to any property which belongs to a third party, including, but not limited to, (i) any entity which is affiliated or related to the Company, or (ii) the Company’s customers, licensors, or suppliers.

¹ For purposes of Section 3, 4, and 5 of this Agreement, the term “Company” includes the Company, the Company’s parents, subsidiaries, affiliates, and all related companies, as well as each of their respective current and former officers, directors, shareholders, members, managers, employees, agents, and any other representatives, any employee benefits plan of the Company, and any fiduciary of those plans, in each case, in their capacity as such.

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8.          Prohibited Post-Employment Activities.  You acknowledge and agree that, effective as of the Separation Date: (a) You removed any reference to the Company as Your current employer from any source You control, either directly or indirectly, including, but not limited to, any Social Media such as LinkedIn, Facebook, Google+, Twitter and/or Instagram, and (b) You are not permitted to represent Yourself as currently being employed by the Company to any person or entity, including, but not limited to, on any Social Media. For purposes of this Section, “Social Media” means any form of electronic communication (such as Web sites for social networking and micro blogging) through which users create online communities to share information, ideas, personal messages and other content, such as videos.

9.        Entire Agreement.  This Agreement, together with the provisions of the Employment Agreement incorporated herein, constitutes the entire agreement between the Parties.  This Agreement supersedes any prior communications, agreements, or understandings, whether oral or written, between the Parties arising out of or relating to Your employment and the termination of that employment.  Other than the terms of this Agreement, no other representation, promise, or agreement has been made with You to cause You to sign this Agreement.

10.       Non-Interference.  Notwithstanding anything to the contrary set forth in this Agreement or in any other agreement between You and the Company, nothing in this Agreement or in any other agreement shall limit Your ability, or otherwise interfere with Your rights, to (a) file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission, or any other federal, state, or local governmental agency or commission (each a “Government Agency”), (b) communicate with any Government Agency or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information, without notice to the Company, (c) receive an award for information provided to any Government Agency, or (d) engage in activity specifically protected by Section 7 of the National Labor Relations Act, or any other federal or state statute or regulation.

11.       Voluntary Agreement.  You acknowledge the validity of this Agreement and represent that You have the legal capacity to enter into this Agreement. You acknowledge and agree You have carefully read the Agreement, know and understand the terms and conditions, including its final and binding effect, and sign it voluntarily.

12.        Execution.  This Agreement may be executed in one or more counterparts, including, but not limited to, facsimiles and scanned images, and it shall not be necessary that the signatures of all Parties hereto be contained on any one counterpart.  Each counterpart shall for all purposes be deemed to be an original, and each counterpart shall constitute this Agreement.

14.       Governing Law.  THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS OF GEORGIA OR ANY OTHER JURISDICTION, AND, WHERE APPLICABLE, THE LAWS OF THE UNITED STATES.

If the terms set forth in this Agreement are acceptable, please initial each page, sign below and return the signed original to the Vice President, Human Resources Department, on or before the 21st day after You receive this Agreement.  If the Company does not receive a signed original on or before the 21st day after You receive this Agreement, then this offer is revoked, and You shall not be entitled to the consideration set forth in this Agreement.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement to be effective as of the Effective Date.

Internap Corporation	Peter Aquino
By: Michael Sicoli	/s/ Peter Aquino
Its: Chief Executive Officer	Date: May 8, 2020
Date: May 8, 2020

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