AMENDED AND RESTATED CREDIT AGREEMENT Dated as of February 6, 2018 between INSPERITY, INC., as Borrower, THE LENDERS PARTIES HERETO, ZB, N.A. dba AMEGY BANK, as Agent, BANK OF AMERICA, N.A. and WELLS FARGO BANK, N.A., as Co- Syndication Agents, and...

Exhibit 10.1

AMENDED AND RESTATED
CREDIT AGREEMENT

Dated as of

February 6, 2018

between

INSPERITY, INC.,

as Borrower,

THE LENDERS PARTIES HERETO,

ZB, N.A. dba AMEGY BANK,

as Agent,

BANK OF AMERICA, N.A.

and

▇▇▇▇▇ FARGO BANK, N.A.,

as Co- Syndication Agents,

and

BRANCH BANKING & TRUST COMPANY,

as Documentation Agent

Table of Contents



		Page
ARTICLE I. Definitions		1
Section 1.1	Definitions	1
Section 1.2	Other Definitional Provisions	18
Section 1.3	Accounting Terms and Determinations: GAAP	18

ARTICLE II. Revolving Line of Credit and Letters of Credit		19
Section 2.1	Revolving Line of Credit	19
Section 2.2	Revolving Notes	19
Section 2.3	Interest	20
Section 2.4	Repayment of Principal and Interest	20
Section 2.5	Requests for Revolving Advances	20
Section 2.6	Use of Proceeds	21
Section 2.7	Unused Commitment Fee; Reduction or Termination of Commitment	21
Section 2.8	Increase of the Combined Commitments	22
Section 2.9	Swing Loans	23
Section 2.10	Letters of Credit	24
Section 2.11	Procedure for Issuing Letters of Credit	24
Section 2.12	Participation by Lenders	25
Section 2.13	Payments Constitute Revolving Advances	25
Section 2.14	Letter of Credit Fees	25
Section 2.15	Obligations Absolute	26
Section 2.16	Limitation of Liability	26
Section 2.17	Provisions Regarding Electronic Issuance of Letters of Credit	27
Section 2.18	Cash Deposit Prior to Termination Date	27
Section 2.19	Defaulting Lenders	27
Section 2.20	Failure of Lender to Make Loans or Payments	29
Section 2.21	Mitigation Obligations; Replacement of Lenders	29

ARTICLE III. Payments; Additional Matters with Respect to LIBOR Loans; Yield Protection Provisions		30
Section 3.1	Method of Payment	30
Section 3.2	Sharing of Payments, etc/Non-Receipt of Funds by Agent	30
Section 3.3	Voluntary Prepayments	31
Section 3.4	Computation of Interest	31
Section 3.5	Capital Adequacy	31
Section 3.6	Additional Costs in Respect of Letters of Credit	32
Section 3.7	Conversions and Continuations	32
Section 3.8	Illegality, Impossibility, Regulatory Change; Change in Law and Compensation	33



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Section 3.9	Compensation for Prepayment or Failure to Borrow	33
Section 3.10	Taxes	34

ARTICLE IV. Setoff and Guaranty Agreement		38
Section 4.1	Setoff	38
Section 4.2	Guaranty Agreement	38

ARTICLE V. Conditions Precedent		39
Section 5.1	Initial Extension of Credit	39
Section 5.2	All Extensions of Credit	40

ARTICLE VI. Representations and Warranties		41
Section 6.1	Existence	41
Section 6.2	Financial Statements	41
Section 6.3	Requisite Action; No Breach	41
Section 6.4	Operation of Business	42
Section 6.5	Litigation and Judgments	42
Section 6.6	Rights in Properties; Liens	42
Section 6.7	Enforceability	42
Section 6.8	Approvals	42
Section 6.9	Debt	42
Section 6.10	Use of Proceeds; Margin Securities	42
Section 6.11	ERISA Compliance	43
Section 6.12	Taxes	43
Section 6.13	Disclosure	43
Section 6.14	Subsidiaries	43
Section 6.15	Compliance with Laws	44
Section 6.16	Compliance with Agreements	44
Section 6.17	Environmental Matters	44
Section 6.18	Solvency	44
Section 6.19	Investment Company Act	44
Section 6.20	Proprietary Accounts	44
Section 6.21	Sanctions	45
Section 6.22	Anti-Corruption	45

ARTICLE VII. Affirmative Covenants		45
Section 7.1	Reporting Requirements	45
Section 7.2	Maintenance of Existence; Conduct of Business	47
Section 7.3	Payment of Debt Service	47
Section 7.4	Maintenance of Properties	47
Section 7.5	Taxes and Claims	47
Section 7.6	Insurance	48
Section 7.7	Inspection	48



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Section 7.8	Keeping Books and Records	48
Section 7.9	Compliance with Laws	48
Section 7.10	Compliance with Agreements	48
Section 7.11	Further Assurances	48
Section 7.12	ERISA	48

ARTICLE VIII. Negative Covenants		49
Section 8.1	Debt	49
Section 8.2	Limitation on Liens	49
Section 8.3	Mergers, Acquisitions, Dissolutions and Disposition of Assets	50
Section 8.4	Subsidiaries	51
Section 8.5	Restricted Payments	53
Section 8.6	Loans and Advances	53
Section 8.7	Investments	53
Section 8.8	Compliance with Environmental Laws	55
Section 8.9	Accounting	56
Section 8.10	Change of Business	56
Section 8.11	Transactions with Affiliates	56
Section 8.12	Rate Management Transactions	56
Section 8.13	Compliance with Governmental Regulations	57
Section 8.14	Capital Expenditures	57
Section 8.15	Compliance with ERISA	57
Section 8.16	Sanctions	57
Section 8.17	Anti-Corruption	57
Section 8.18	Excluded Subsidiaries	57

ARTICLE IX. Financial Covenants		58
Section 9.1	Interest Coverage Ratio	58
Section 9.2	Leverage Ratio	58

ARTICLE X. Default		59
Section 10.1	Events of Default	59
Section 10.2	Remedies Upon Default	60
Section 10.3	Cash Collateral	61
Section 10.4	Performance by Agent	61
Section 10.5	Application of Liquidation Proceeds	61

ARTICLE XI. Agent		62
Section 11.1	Appointment and Authorization	62
Section 11.2	Delegation of Duties	62
Section 11.3	Liability of Agent	62
Section 11.4	Reliance by Agent	63
Section 11.5	Notice of Default	63



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Section 11.6	Credit Decision	63
Section 11.7	Indemnification	64
Section 11.8	Agent in Individual Capacity	64
Section 11.9	Successor Agent	64

ARTICLE XII. Miscellaneous		65
Section 12.1	Expenses	65
Section 12.2	INDEMNIFICATION	65
Section 12.3	Limitation of Liability	66
Section 12.4	No Waiver; Cumulative Remedies	66
Section 12.5	Successors and Assigns	66
Section 12.6	Survival	66
Section 12.7	Amendments	67
Section 12.8	Maximum Interest Rate	67
Section 12.9	Notices	68
Section 12.10	Platform	68
Section 12.11	Applicable Law; Venue; Service Process	68
Section 12.12	Counterparts	69
Section 12.13	Severability	69
Section 12.14	Headings	69
Section 12.15	On-line Banking	69
Section 12.16	Electronic Delivery of Documents	69
Section 12.17	Non-Application of Chapter 346 of Texas Finance Code	70
Section 12.18	Consent to Participations	70
Section 12.19	Assignments	71
Section 12.20	USA Patriot Act	72
Section 12.21	Foreign Lender Reporting Requirements	72
Section 12.22	Location of Document Execution	72
Section 12.23	Document Imaging	72
Section 12.24	Confidentiality	73
Section 12.25	Dispute Resolution	73
Section 12.26	ENTIRE AGREEMENT	75



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AMENDED AND RESTATED CREDIT AGREEMENT

THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 6, 2018 (this “Agreement”), is between INSPERITY, INC., a Delaware corporation (“Borrower”), and each of the financial institutions from time to time a party hereto (collectively, “Lenders”, and each a “Lender”), and ZB, N.A. dba AMEGY BANK, a national banking association, as agent for Lenders.

R E C I T A L S:

Borrower has requested that Lenders extend credit to Borrower in the form of a revolving line of credit in the initial principal amount of $350,000,000.00 (which may be increased upon the terms and conditions hereinafter set forth to $400,000,000.00 and which includes a swing line in the amount of $30,000,000.00). Lenders are willing to make such extensions of credit to Borrower upon the terms and conditions hereinafter set forth.

Borrower, certain Lenders and Agent (as defined below) entered into that certain Credit Agreement dated as of September 15, 2011, as amended by that certain Amendment No. 1 to Credit Agreement dated as of December 7, 2012, Amendment No. 2 to Credit Agreement dated as of December 1, 2014, Amendment No. 3 to Credit Agreement dated as of February 6, 2015, Amendment No. 4 to Credit Agreement dated as of March 14, 2016, and Amendment No. 5 to Credit Agreement dated as of November 16, 2017 (as amended, the “Prior Credit Agreement”). This Agreement is in restatement and replacement of the Prior Credit Agreement, and the liens and security interests created by the Loan Documents (as defined below) are in renewal and extension of the liens and security interests created by the documents executed in connection with the Prior Credit Agreement.

Bank of America, N.A. and ▇▇▇▇▇ Fargo Bank, N.A. have been appointed Co-Syndication Agents for the credit facilities described in this Agreement.

Branch Banking & Trust Company has been appointed Documentation Agent for the credit facilities described in this Agreement.

NOW THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto agree as follows:

ARTICLE I.
Definitions

Section 1.1 Definitions. As used in this Agreement, the following terms have the following meanings:

“Acquisition” means the acquisition of substantially all the assets of another Person or a line of business or division of another Person or substantially all the ownership interests of another Person by Borrower or any Subsidiary.

“Affiliate” means, with respect to any Person, any other Person which, directly or indirectly, Controls or is Controlled by or is under common Control with such Person.



Amended and Restated Credit Agreement v7	1

“Agent” means ZB, N.A. dba AMEGY BANK, a national banking association, in its capacity as agent for Lenders, and any successor in such capacity pursuant to Article XI.

“Alternate Base Rate” means, for any day, a rate of interest which is the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Rate in effect on such day plus one-half percent (0.50%), and (c) the sum of (i) the Floating Thirty Day LIBOR Rate as of such day plus (ii) two percent (2.0%). Notwithstanding the foregoing, under no circumstances will the Alternate Base Rate be less than zero percent (0.0%) (the “Alternate Base Rate Floor”), provided, however, if Borrower has entered into a Rate Management Transaction with a Lender for purposes of hedging the interest rate floor on the Notes, then no Alternate Base Rate Floor shall be applicable for the Notes during the period(s) such swap transaction is in effect.

“Alternate Base Rate Loans” means Loans that bear interest at rates based upon the Alternate Base Rate.

“Alternate Base Rate Margin” means, for any day, the rate per annum identified as the Alternate Base Rate Margin in the table contained in the definition of the term “Applicable Margin” corresponding to the applicable Level on such day.

“Amegy” means ZB, N.A. dba AMEGY BANK and its successors and permitted assigns.

“Applicable Margin” means, for the Levels described below, the applicable rate per annum set forth below.



	▇▇▇▇▇ ▇	▇▇▇▇▇ ▇▇	▇▇▇▇▇ ▇▇▇	▇▇▇▇▇ ▇▇
▇▇▇▇▇ Margin	1.50%	1.75%	2.00%	2.25%
Alternate Base Rate Margin	0.00%	0.00%	0.25%	0.50%

Level I applies when the Leverage Ratio is less than or equal to 1.00 to 1.00.

Level II applies when the Leverage Ratio is greater than 1.00 to 1.00 but less than or equal to 1.50 to 1.00.

Level III applies when the Leverage Ratio is greater than 1.50 to 1.00 but less than or equal to 2.00 to 1.00.

Level IV applies when the Leverage Ratio is greater than 2.00 to 1.00.

The applicable Level shall be adjusted, to the extent applicable, forty-five (45) days after the end of each fiscal quarter of Borrower (or, in the case of any change reflected by the audited financial statements delivered pursuant to Section 7.1(a), one hundred twenty (120) days after the end of any fiscal year) based on the Leverage Ratio tested for the period of four (4) consecutive fiscal quarters ending on the last day of such fiscal quarter or such fiscal year, as applicable; provided that if Borrower fails to deliver the financial statements required by Section 7.1(a) or (b), as



Amended and Restated Credit Agreement v7	2

applicable, or the related No Default Certificate required by Section 7.1(c) by the forty-fifth (45^th) day (or, if applicable, the one hundred twentieth (120^th) day) after the end of any fiscal quarter or any fiscal year, as applicable, Level IV shall be the “Applicable Margin” until such financial statements are delivered.

“Applicable Rate” means (a) during the period that a Loan is an Alternate Base Rate Loan, the sum of (i) the Alternate Base Rate from time to time in effect, plus (ii) the applicable Alternate Base Rate Margin, and (b) during the period that a Loan is a LIBOR Loan, the sum of (i) the LIBOR Rate from time to time in effect, plus (ii) the applicable LIBOR Margin; provided, however, that if an Event of Default has occurred and is continuing, the Applicable Rate shall be determined pursuant to clause (a) only and clause (b) shall not be applicable.

“Assignment and Acceptance” means a document in substantially the form of Exhibit “E”.

“Authorized Representative” means the chief executive officer, the chief financial officer, the president or any other officer or employee of Borrower who has been designated in writing by Borrower to Agent to be an Authorized Representative.

“Bermuda Subsidiary” means Insperity Captive Insurance Companies Limited, a Bermuda corporation.

“Borrower” has the meaning given to such term in the introductory paragraph hereof.

“Business Day” means (a) any day other than a Saturday, Sunday or a day on which commercial banks are authorized or required by law to close in Houston, Texas, and (b) with respect to all borrowings, payments, Conversions, Continuations, Interest Periods, and notices in connection with LIBOR Loans, any day which is a Business Day described in clause (a) above and which is also a day on which dealings in Dollar deposits are carried out in the London interbank market.

“Capital Expenditures” means for Borrower and its Subsidiaries, all expenditures for assets which, in accordance with GAAP, are required to be capitalized and so shown on the consolidated balance sheet of Borrower and its Subsidiaries and which are incurred for property, plant and equipment in the ordinary course of business.

“Capitalized Lease Obligations” means, for Borrower and its Subsidiaries, on a consolidated basis, the obligations of Borrower and its Subsidiaries to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property, which obligations, in accordance with GAAP, are required to be classified and accounted for as a capital lease on a balance sheet of any such Person.

“Cash Distribution” means any distribution, dividend or any other payment paid in cash or cash equivalents by Borrower on account of its capital stock, other than the Special Dividend. For the avoidance of doubt, repurchases by Borrower of any of its capital stock shall not constitute a “Cash Distribution”.



Amended and Restated Credit Agreement v7	3

“Cash Interest Expense” means for Borrower and its Subsidiaries, on a consolidated basis, for any period, the sum of all cash interest expense paid or required by its terms to be paid during such period, as determined in accordance with GAAP.

“Change in Law” means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority charged with the interpretation, administration or application thereof, after the date of this Agreement or (c) compliance by a Lender (or its parent company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided, however, that notwithstanding anything herein to the contrary, (i) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, guidelines, directives, rules or regulations thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives concerning capital adequacy (A) promulgated by the Bank for International Settlements or the Basel Committee on Banking Supervision (or any successor or similar authority) and made or issued by any Governmental Authority or (B) made or issued by the United States financial 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, and shall be deemed to have gone into effect and adopted after the date of this Agreement.

“Change of Control” means with respect to Borrower the acquisition of ownership, directly or indirectly, beneficially or of record by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect of the date hereof) other than Related Persons, of shares representing more than fifty percent (50%) of the aggregate ordinary voting power represented by the issued and outstanding capital stock of Borrower.

“Claims” has the meaning set forth in Section 12.2.

“Closing Date” means the date on which this Agreement has been executed and delivered by the parties hereto and the conditions set forth in Section 5.1 have been satisfied (or waived by Agent).

“Co-Syndication Agents” means Bank of America, N.A. and ▇▇▇▇▇ Fargo Bank, N.A., each in its capacity as a co-syndication agent for the credit facilities described in this Agreement.

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

“Combined Commitments” means, at any time, the sum of the Commitments of all Lenders at such time. The Combined Commitments shall be $350,000,000.00 as of the date of this Agreement.

“Combined Commitments Increase” shall have the meaning given to such term in Section 2.8.

“Commitment Percentage” means, at any time, for each Lender, the percentage derived by dividing such Lender’s Commitment at such time by the Combined Commitments at such time.



Amended and Restated Credit Agreement v7	4

“Commitment” means, as to any Lender, its obligation to make Revolving Advances and to acquire participations in Letters of Credit and Swing Loans hereunder in an aggregate amount set forth opposite the name of such Lender on Annex “I” hereto under the heading “Commitments”, or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Commitment, as applicable, as the same may be (a) reduced as provided herein, (b) modified as provided in an amendment to this Agreement, (c) modified as the result of an assignment of all or part of such Lender’s Revolving Note pursuant to Section 12.19 or (d) increased pursuant to Section 2.8.

“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.

“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 to otherwise. “Controlled” has the meaning correlative thereto.

“Continue”, “Continuation” and “Continued” shall refer to the continuation pursuant to Section 3.7 of a LIBOR Loan from one Interest Period to the next Interest Period.

“Convert”, “Conversion”, and “Converted” shall refer to a conversion pursuant to Section 3.7 or 3.8 of one Type of Loan into another Type of Loan.

“Credit Exposure” means, with respect to any Lender at any time, the sum of (a) the outstanding principal amount of such Lender’s Revolving Advances at such time plus (b) such Lender’s LC Exposure at such time plus (c) such Lender’s Swing Exposure at such time.

“Current Assets” means, at any particular time, all amounts which, in conformity with GAAP, would be included as current assets on a consolidated balance sheet of Borrower and its Subsidiaries.

“Current Liabilities” means, at any particular time, all amounts which, in conformity with GAAP, would be included as current liabilities on a consolidated balance sheet of Borrower and its Subsidiaries.

“Debt” means, for any Person, (a) all indebtedness of such Person, whether or not represented by bonds, debentures, notes, securities or other evidences of indebtedness, for the repayment of money borrowed, including, with respect to Borrower, the indebtedness evidenced by the Notes and all other indebtedness for the repayment of money borrowed by Borrower and owed to any Lender, (b) indebtedness and obligations of such Person arising in connection with Rate Management Transactions, (c) all indebtedness of such Person representing deferred payment of the purchase price of property or assets (other than accounts payable incurred in the ordinary course of business which are either (i) current or (ii) being contested in good faith by appropriate action and for which adequate reserves have been maintained in accordance with GAAP), (d) Capitalized Lease Obligations, (e) all indebtedness of such Person under guaranties, endorsements, assumptions or other contingent obligations in respect of, or to purchase or otherwise acquire, Debt (as defined in the other clauses of this definition) of others, (f) all Debt (as defined in the other clauses of this definition) of others secured by a Lien existing on property owned by such Person, whether or not



Amended and Restated Credit Agreement v7	5

the indebtedness secured thereby shall have been assumed by the owner thereof, and (g) any obligation of such Person to redeem or repurchase any of such Person’s capital stock, partnership or membership interests or other ownership interests, as applicable, on or prior to the date that is ninety-one (91) days after the Termination Date.

“Default Rate” means the lesser of (a) with respect to any Note, the sum of the stated rate to be borne by such Note plus two percent (2.0%) or (b) the Maximum Rate.

“Defaulting Lender” means any Lender that has (a) failed to fund any portion of its Loans or participations in Letters of Credit or Swing Loans within three (3) Business Days of the date required to be funded by it hereunder, (b) notified Borrower, Agent, Issuing Bank, the Swing Lender or any Lender in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement or under other agreements in which it commits to extend credit, (c) failed, within three (3) Business Days after request by Agent or Borrower, to confirm in writing that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit and Swing Loans, (d) otherwise failed to pay over to Agent, Issuing Bank or any Lender any other amount required to be paid by it hereunder within three (3) Business Days of the date when due, unless (i) the amount due is the subject of a good faith dispute, or (ii) Agent consents (which consent may be withheld at the sole discretion of Agent) to such Lender’s cure of such failure, or (e) as determined by Agent, (i) become or is insolvent or has a parent company that has become or is insolvent or (ii) become the subject of a bankruptcy or 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 or has a parent company that has become the subject of a bankruptcy or 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.

“Distribution” means any distribution, dividend or any other payment or distribution (in cash, property or obligations) made by a Person on account of its capital stock or other equity interest.

“Documentation Agent” means Branch Banking & Trust Company, in its capacity as a documentation agent for the credit facilities described in this Agreement.

“Dollar,” “Dollars” and “$” means currency of the United States of America which is at the time of payment legal tender for the payment of public and private debts in the United States of America.

“Domestic Subsidiary” means any Subsidiary of Borrower, whether presently or hereafter created or existing, that is organized and existing under the laws of the United States or any state or commonwealth thereof or under the laws of the District of Columbia; provided that if such Subsidiary does not exist on the date of this Agreement, Borrower or such Subsidiary shall satisfy



Amended and Restated Credit Agreement v7	6

the provisions of Section 8.4(a)(i) with respect to such Subsidiary. The Domestic Subsidiaries are listed on Schedule 6.14. Schedule 6.14 may be amended or supplemented from time to time with the written consent of Agent and Borrower.

“EBITDA” means for Borrower and its Subsidiaries, on a consolidated basis for any period, the sum of (a) Operating Income for such period, plus (b) depreciation and amortization for such period, plus (c) non-cash stock based compensation expense for such period, plus (d) Interest Income for such period, plus (e) extraordinary or non-recurring expenses or charges, in an aggregate amount not to exceed $10,000,000.00 during any consecutive four (4) quarter period, plus (f) any non-cash write-off for impairment of long lived assets (including goodwill, intangible assets and fixed assets such as property, plant and equipment), or of deferred financing fees or investments in debt and equity securities during such period, plus (g) any non-cash impact of accounting changes or restatements during such period, plus (h) expenses associated with prepaid software-as-a-service (SaaS) product implementations during such period, provided such amount shall not exceed $2,000,000.00 during any consecutive four (4) quarter period, plus (i) transaction costs and synergies approved by Agent for such period; provided, however, that the amounts of each of the items set forth in the clauses above shall include, for the first twelve (12) months after any Acquisition, the actual historical amounts of such items for any Person which is acquired by Borrower or any Subsidiary in such Acquisition.

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

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

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

“Eligible Assignee” means any of (a) a Lender or any Affiliate of a Lender (except, in each case, a Defaulting Lender) (b) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000.00, (c) a commercial bank organized under the laws of a country which is a member of the Organization for Economic Cooperation and Development, or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000.00, provided that such bank is acting through a branch or agency located in the United States, and (d) subject to the provisions of Section 12.19, any other Person approved by Agent and, if no Event of Default or Unmatured Event of Default exists, by Borrower.

“Eligible Contract Participant” shall have the meaning given to such term in the Commodity Exchange Act and the regulations thereunder.



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“Environmental Laws” means any and all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of Hazardous Substance or to health and safety matters.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations and published interpretations thereof.

“Event of Default” has the meaning specified in Section 10.1.

“Excluded Subsidiary” means, subject to Section 8.18, any Subsidiary that has annual cash flow less than $1,000,000.00 as of the end of the immediately preceding fiscal year of Borrower.

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

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) withholding Taxes imposed on amounts payable to or for the account of such Recipient with respect to an applicable interest in a Loan or Commitment or otherwise under a Loan Document pursuant to a law in effect on the date on which (i) such Recipient becomes a party to this Agreement or acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by Borrower under Section 2.21(b)) or (ii) such Recipient changes its lending office, except in each case to the extent that, pursuant to Section 3.10, amounts with respect to such Taxes were payable either to such Recipient’s assignor immediately before such Recipient became a party hereto or to such Recipient immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.10(g), (d) any withholding Taxes imposed under FATCA, (e) Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.21(b)), and (f) any Taxes imposed on or with respect to a Participant or required to be withheld or deducted from a payment to a Participant.

“Existing Lender” means a Lender under the Prior Credit Agreement as of the Closing Date.



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

“Federal Funds Rate” means, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day immediately succeeding such day, provided that (a) if the day for which such rate is to be determined is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the immediately succeeding Business Day and (b) if no such rate is so published on such immediately succeeding Business Day, the Federal Funds Rate for any day shall be the average rate (rounded upwards, if necessary, to the next 1/100 of 1%) charged to Agent on such day on such transactions as determined by Agent.

“Financial Officer” means the chief executive officer, the chief financial officer, the principal accounting officer or the treasurer of Borrower or any other officer of Borrower acceptable to Agent.

“Floating Thirty Day LIBOR Rate” means, as of any day, the rate per annum offered for Dollar deposits in an amount comparable to the principal amount of the outstanding Alternate Base Rate Loans for a period of thirty (30) days as of 11:00 a.m. City of London, England time two (2) Business Days prior to such day as quoted on that page of the Reuters or Bloomberg System (“Bloomberg”) reporting service (as then being used by Agent to obtain such interest rate quotes) that displays the London interbank offered rate administered by Intercontinental Exchange Group (ICE) Benchmark Administration Limited (“ICE”) (or the successor thereto) for such Dollar deposits; provided, however, that if such rate is not available on Bloomberg or Reuters, then such offered rate shall be otherwise independently determined by Agent from an alternate, substantially similar independent source available to Agent and recognized in the banking industry. Notwithstanding the foregoing, under no circumstances will the Floating Thirty Day LIBOR Rate be less than zero percent (0.0%) (the “Floating Thirty Day LIBOR Interest Rate Floor”), provided, however, if Borrower has entered into a Rate Management Transaction with a Lender for purposes of hedging the interest rate floor on the Notes, then no Floating Thirty Day LIBOR Interest Rate Floor shall be applicable for the Notes during the period(s) such swap transaction is in effect.

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

“Foreign Subsidiary” means any Subsidiary of Borrower that is not a Domestic Subsidiary, whether presently or hereafter created or existing; provided that if such Subsidiary does not exist on the date of this Agreement, Borrower and such Subsidiary shall satisfy the provisions of Section 8.4(a)(ii) with respect to such Subsidiary. The Foreign Subsidiaries are listed on Schedule 6.14. Schedule 6.14 may be amended or supplemented from time to time with the written consent of Agent and Borrower.



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“Funded Debt” means, at any time, for Borrower and its Subsidiaries, on a consolidated basis, the sum of (a) all indebtedness for borrowed money, whether or not evidenced by notes, bonds, debentures or similar instruments, of Borrower and its Subsidiaries, including the Notes, (b) all Capitalized Lease Obligations, (c) all obligations of Borrower and its Subsidiaries to pay the deferred purchase price of property or services (but excluding trade accounts payable or trade notes in the ordinary course of business that are not past due by more than ninety (90) days) arising in the ordinary course of business, (d) all indebtedness of others secured by a Lien on the property of such Persons, and (e) the Letter of Credit Liabilities and liabilities related to other unfunded letters of credit, bankers acceptances and similar instruments.

“GAAP” means generally accepted accounting principles in the United States of America.

“Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

“Guarantors” means (a) those Domestic Subsidiaries existing on the Closing Date and (b) all future Domestic Subsidiaries, excluding, in each case, (i) those expressly released from their obligations by Agent pursuant to Section 8.4(b) and (ii) Excluded Subsidiaries, to the extent any Domestic Subsidiary qualifies to be an Excluded Subsidiary at the time of determination.

“Guarantor Release Date” shall have the meaning given to such term in Section 8.4(b)(i).

“Guaranty Agreement” means the Amended and Restated Guaranty Agreement, dated as of the date hereof, executed by each Guarantor existing on the Closing Date in favor of Agent in substantially the form of Exhibit “F”, as the same may be amended, supplemented or modified from time to time.

“Hazardous Substance” means any substance, product, waste, pollutant, material, chemical, contaminant, constituent, or other material which is or becomes listed, regulated or addressed under any Environmental Law.

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

“Indemnitee” has the meaning set forth in Section 12.2.

“Interest Coverage Ratio” means for Borrower and its Subsidiaries, on a consolidated basis, as of any date (a) EBITDA for the period of four consecutive fiscal quarters ended on such date, divided by (b) the sum of (i) Cash Interest Expense for the period of four consecutive fiscal quarters ended on such date, plus (ii) Cash Distributions paid, or to be paid, for the period of four consecutive fiscal quarters ended on such date.



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“Interest Income” means for Borrower and its Subsidiaries, on a consolidated basis, for any period, the sum of all interest income for such period, as determined in accordance with GAAP.

“Interest Period” means, with respect to any LIBOR Loan, the period commencing on the date such Loan is made or Converted from Loans of another Type or, in the case of each subsequent, successive Interest Period applicable to a LIBOR Loan, each period commencing on the last day of the immediately preceding Interest Period with respect to such LIBOR Loan, and in each case ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as Borrower may select as provided in Sections 2.5 or 3.7; provided, however, that (a) each Interest Period that would otherwise end on a day which is not a Business Day shall end on the next succeeding Business Day, unless such extension would cause the last day of such Interest Period to occur in the next following calendar month, in which case such Interest Period shall end on the next preceding Business Day, (b) any Interest Period which begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month in which it would have ended if there were a numerically corresponding day in such calendar month, (c) no Interest Period for any LIBOR Loan may extend beyond the Termination Date (and any proposed LIBOR Loan with an Interest Period which would extend beyond the Termination Date shall be an Alternate Base Rate Loan), (d) for all LIBOR Loans no more than eight (8) Interest Periods shall be in effect at the same time and (e) no Interest Period shall have a duration of less than thirty (30) days and, if the Interest Period for any LIBOR Loan would otherwise be a shorter period, such Loan shall be an Alternate Base Rate Loan.

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

“Issuing Bank” means ZB, N.A. dba AMEGY BANK and its successors and permitted assigns.

“Joinder to Guaranty Agreement” means a Joinder to Guaranty Agreement executed by a Guarantor pursuant to Section 8.4 or Section 8.18, in favor of Agent in substantially the form of Exhibit “H”, as the same may be amended, supplemented or modified from time to time.

“LC Exposure” means, with respect to any Lender at any time, such Lender’s Pro Rata Share of the Letter of Credit Liabilities at such time.

“Lender” and “Lenders” have the meanings given to such terms in the introductory paragraph hereof.

“Letter of Credit” means any letter of credit issued by Issuing Bank for the account of Borrower pursuant to Article II.

“Letter of Credit Application” means Issuing Bank’s standard form of letter of credit application and agreement, as the same may be amended or supplemented.

“Letter of Credit Liabilities” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all drawings



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made under Letters of Credit that have not been reimbursed by one or more Revolving Advances at such time.

“Leverage Ratio” means, as of any date, (a) Funded Debt as of such date divided by (b) EBITDA for the period of four consecutive fiscal quarters ended on such date.

“LIBOR Loans” means Loans the interest rates on which are determined on the basis of the rates referred to in the definition of “LIBOR Rate”.

“LIBOR Margin” means, for any day, the rate per annum identified as the LIBOR Margin in the table contained in the definition of the term “Applicable Margin” corresponding to the applicable Level on such day.

“LIBOR Rate” means, for any LIBOR Loan, for any Interest Period therefor, (a) the rate per annum quoted on that page of the Reuters or Bloomberg reporting service (as then being used by Agent to obtain such interest rate quotes) that displays the London interbank rate administered by Intercontinental Exchange Group (ICE) Benchmark Administration Limited (“ICE”) (or the successor thereto) for Dollar deposits in an amount comparable to the outstanding principal amount of such LIBOR Loan for a period of time equal to such Interest Period as of 11:00 a.m. City of London, England time two (2) London Business Days prior to the first date of such Interest Period; provided, however, that if such rate is not available on Bloomberg or Reuters, then such rate shall be otherwise independently determined by Agent from an alternate, substantially similar independent source available to Agent and recognized in the banking industry; divided by (b) one (1) minus the Reserve Requirement. Notwithstanding the foregoing, under no circumstances will the LIBOR Rate be less than zero percent (0.0%) (the “LIBOR Interest Rate Floor”), provided, however, if Borrower has entered into a Rate Management Transaction with a Lender for purposes of hedging the interest rate floor on the Notes, then no LIBOR Interest Rate Floor shall be applicable for the Notes during the period(s) such swap transaction is in effect.

“Lien” means any lien, mortgage, security interest, pledge, charge, hypothecation or other encumbrance of any kind or nature whatsoever (including, without limitation, the interest of a vendor under any conditional sale or title retention agreement), whether arising by contract, operation of law, or otherwise.

“Loan Documents” means this Agreement and all promissory notes, security agreements, deeds of trust, assignments, letters of credit, guaranties, and other instruments, documents, and agreements executed and delivered pursuant to or in connection with this Agreement, as such instruments, documents, and agreements may be amended, modified, renewed, extended or supplemented.

“Loan Parties” means Borrower and Guarantors.

“Loans” means Revolving Advances and Swing Loans.



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“London Business Day” means any day other than a Saturday, Sunday or a day on which banking institutions are generally authorized or obligated by laws or executive order to close in the City of London, England.

“Majority Lenders” means, at any time, Lenders holding more than 50% or more of the Combined Commitments; provided, however, that if there are only two (2) Lenders, “Majority Lenders” means both Lenders; provided, further, that the Commitment of any Defaulting Lender shall be excluded for purposes of making a determination of Majority Lenders.

“Material Adverse Effect” means a material adverse effect on (a) the business, operations, property or condition (financial or otherwise) of Borrower and its Subsidiaries, taken as a whole, (b) the ability of Borrower to pay the Obligations or the ability of Borrower and the Guarantors, considered as a whole, to perform their respective obligations under this Agreement and the other Loan Documents, or (c) the validity or enforceability of this Agreement, the Guaranty Agreement or any of the other Loan Documents, or the rights or remedies of Agent or any Lender under this Agreement, the Guaranty Agreement or any of the Notes.

“Maximum Rate” means the maximum rate of nonusurious interest permitted from day to day by applicable law, including Chapter 303 of the Texas Finance Code (the “Code”) (and as the same may be incorporated by reference in other Texas statutes). To the extent that Chapter 303 of the Code is relevant to Lenders for the purposes of determining the Maximum Rate, Lenders may elect to determine such applicable legal rate pursuant to the “weekly ceiling,” from time to time in effect, as referred to and defined in Chapter 303 of the Code; subject, however, to the limitations on such applicable ceiling referred to and defined in the Code, and further subject to any right any Lender may have subsequently, under applicable law, to change the method of determining the Maximum Rate.

“Merger” shall have the meaning given to such term in Section 8.3.

“Net Working Capital” means for Borrower and its Subsidiaries, on a consolidated basis, as of any date, (a) Current Assets as of such date minus (b) Current Liabilities as of such date; provided that, for purposes of calculating Current Assets, Borrower may include an amount equal to the maximum amount of the Revolving Line of Credit Availability as of such date which, assuming such amount had been fully borrowed as of such date, would not cause the Leverage Ratio as of such date to exceed 3.00 to 1.00.

“New Lender” means a Lender on the Closing Date which is not an Existing Lender.

“No Default Certificate” means a certificate in the form of Exhibit “D” hereto, fully completed and executed by Borrower.

“Notes” means the Revolving Notes and the Swing Note.

“Obligations” means (a) all obligations, indebtedness and liabilities of Borrower to Agent, Issuing Bank and Lenders, or any of them, arising pursuant to this Agreement or any of the other Loan Documents, now existing or hereafter arising, including, without limitation, all of Borrower’s



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contingent reimbursement obligations in respect of Letters of Credit, (b) all interest accruing thereon and all attorneys’ fees and other expenses incurred in the enforcement or collection thereof and (c) all Rate Management Transaction Obligations. Notwithstanding the foregoing, the definition of “Obligations” shall not create any guarantee by any Guarantor of (or grant of security interest by any Guarantor to support, as applicable) any Excluded Swap Obligations of such Guarantor for purposes of determining any obligations of any Guarantor.

“Operating Income” means, for Borrower and its Subsidiaries for any period, the consolidated operating income (or loss) of Borrower and its Subsidiaries for such period, as determined in accordance with GAAP.

“Organizational Documents” means, for any Person, (a) if such Person is a corporation, the articles of incorporation or certificate of incorporation and bylaws of such Person, (b) if such Person is a limited liability company, the articles of organization or certificate of formation and regulations or limited liability company agreement of such Person, (c) if such Person is a limited partnership, the certificate of limited partnership or certificate of formation and the limited partnership agreement of such Person and (d) if such person is not a corporation, limited liability company or limited partnership, the documents under which such Person was created and is governed.

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

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.21(b)).

“Participant Register” shall have the meaning given to such term in Section 12.18.

“PBGC” means the Pension Benefit Guaranty Corporation.

“Permitted Dividend” means the regular quarterly dividend established by the board of directors of Borrower.

“Person” means any individual, corporation, limited liability company, partnership, joint venture, company, trust, business trust, association, Governmental Authority or other entity.

“Pledge Agreement” means (a) that certain Amended and Restated Pledge Agreement, dated as of the date hereof, executed by Administaff Partnerships Holding, Inc., a Delaware corporation, in favor of Agent, as the same may be amended, supplemented or modified from time to time and



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(b) any other Pledge Agreement executed by Borrower or a Domestic Subsidiary after the Closing Date in favor of Agent pursuant to Section 8.4, in substantially the form of Exhibit “G”, as the same may be amended, supplemented or modified from time to time, and “Pledge Agreements” shall mean, collectively, all such agreements.

“Pledged Foreign Subsidiary” means each Foreign Subsidiary (other than the Bermuda Subsidiary) with respect to which sixty-five percent (65%) of the ownership interests thereof have been pledged to Agent pursuant to Section 8.4(a)(ii)(C).

“Prime Rate” means, at any time, the rate of interest per annum then most recently published in The Wall Street Journal (or any successor publication if The Wall Street Journal is no longer published) in the “Money Rates” section (or such successor section) as the “Prime Rate.” If a range of prime interest rates per annum is so published, “Prime Rate” shall mean the highest rate per annum in such published range. If the definition of “Prime Rate” is no longer published in The Wall Street Journal (or any successor publication), “Prime Rate” shall mean, at any time, the rate of interest per annum then most recently established by Agent as its prime rate.

“Pro Rata” or “Pro Rata Share” means for each Lender, with respect to Revolving Advances and Letters of Credit and fees, as applicable, attributable thereto, such Lender’s Commitment Percentage.

“Proprietary Accounts” shall mean all the depository accounts of Borrower and its Subsidiaries which are not used to hold client-related payroll and payroll tax funds. The Proprietary Accounts of Borrower and its Subsidiaries as of the date of each No Default Certificate are listed on such No Default Certificate.

“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Guarantor that at the time the relevant Swap Obligation is incurred constitutes an Eligible Contract Participant and can cause another Person to qualify as an Eligible Contract Participant at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

“Rate Management Transaction” means any transaction (including an agreement with respect thereto) now existing or hereafter entered into by Borrower or any Subsidiary which is a rate swap, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, forward transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether linked to one or more interest rates, foreign currencies, commodity prices, equity prices or other financial measures.

“Rate Management Transaction Obligations” means any and all obligations and indebtedness, contingent or otherwise, whether now existing or hereafter arising, of Borrower or any Subsidiary to any Lender arising under or in connection with any Rate Management Transaction.

“Recipient” means (a) Agent, (b) any Lender and (c) Issuing Bank, as applicable.



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“Register” shall have the meaning given to such term in Section 12.19.

“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as the same may be amended or supplemented.

“Regulatory Change” means, with respect to any Lender, any change after the date of this Agreement in United States federal, state, or foreign laws or regulations (including Regulation D) or the adoption or making after such date any interpretations, directives, or requests applying to a class of banks (including any Lender) of or under any United States federal or state, or any foreign, laws or regulations (whether or not having the force of law) by any court or governmental or monetary authority charged with the interpretation or administration thereof.

“Related Persons” means (a) Borrower and any of its Subsidiaries, (b) any trust for any employee benefit plan of Borrower or any of its Subsidiaries, (c) any other individual who is as of the date of this Agreement an employee or retiree of Borrower or any of its Subsidiaries or any member of such employee’s or retiree’s family, and (d) any trust, corporation, partnership or family foundation created by or for the benefit of any individual who is as of the date of this Agreement an employee or retiree of Borrower or any of its Subsidiaries or any member of such employee’s or retiree’s family.

“Reserve Requirement” means the aggregate maximum reserve percentages (including any marginal, special, supplemental or emergency reserves, and expressed as a decimal) established by the Board of Governors of the Federal Reserve System or any other United States banking authority to which Lenders are subject for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D). Such reserve percentages shall include, without limitation, those imposed under Regulation D. LIBOR Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time under Regulation D or any comparable regulation. The Reserve Requirement shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“Requesting Guarantor” shall have the meaning given to such term in Section 8.4(b).

“Revolving Advance” means an advance of funds pursuant to Article II (other than Swing Loans).

“Revolving Advance Request Form” means a certificate, in substantially the form of Exhibit “C”, properly completed and signed by Borrower requesting a Revolving Advance.

“Revolving Line of Credit” means the credit facility extended by those Lenders who have a Commitment to Borrower pursuant to Article II.

“Revolving Line of Credit Availability” means, as of any date, an amount equal to the Combined Commitments minus the sum of (a) the aggregate principal amount of the outstanding Revolving Advances, plus (b) the Letter of Credit Liabilities, plus (c) the aggregate principal amount of the outstanding Swing Loans.



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“Revolving Notes” means the promissory notes executed by Borrower payable to each Lender or its registered assigns, in substantially the form of Exhibit “A”, properly completed, as the same may be renewed, extended or modified, and all promissory notes executed by Borrower in renewal, extension, modification or substitution thereof.

“Sanctions” shall have the meaning given to such term in Section 6.21.

“SEC” means the Securities and Exchange Commission or any successor Governmental Authority.

“Special Dividend” means (a) that certain special cash dividend declared by the board of directors of Borrower on November 15, 2017, and payable to each of its stockholders of record on December 4, 2017 in the amount of $2.00 per share of common stock of Borrower, to be paid on December 18, 2017 and (b) other cash dividends (other than any Permitted Dividend) declared by the board of directors of Borrower from time to time so long as Net Working Capital (calculated on a pro forma basis as if such Special Dividend had been made on the last day of the fiscal quarter most recently ended for which financial statements are available) is at least $30,000,000.

“Stock Repurchase” has the meaning assigned to such term in Section 8.5(b).

“Subsidiary” means any Person with respect to which Borrower or one or more of its other Subsidiaries, or Borrower and one or more of its other Subsidiaries, own or control, directly or indirectly, fifty percent (50%) or more of (a) the combined voting power of all classes of capital stock having general voting power under ordinary circumstances to elect a majority of the directors (if it is a corporation), managers or equivalent body of such Person, (b) the capital interest or profits interest of such Person, if it is a partnership, limited liability company, joint venture or similar entity, or (c) the beneficial interest of such Person, if it is a trust, association or other unincorporated association or organization.

“Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

“Swing Exposure” means, with respect to any Lender at any time, such Lender’s Pro Rata Share of the aggregate principal amount of all Swing Loans outstanding at such time.

“Swing Lender” means the Lender designated as Swing Lender, initially Amegy.

“Swing Loan” has the meaning assigned to such term in Section 2.9.

“Swing Loan-Applicable Rate” means the sum of (a) the Alternate Base Rate from time to time in effect, plus (b) the applicable Alternate Base Rate Margin.

“Swing Note” means the promissory note executed by Borrower payable to the order of Swing Lender or its registered assigns, in substantially the form of Exhibit “B”, as the same may be renewed, extended or modified, and all promissory notes executed by Borrower in renewal, extension, modification or substitution thereof.



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

“Termination Date” means 11:00 a.m. on February 6, 2023, or such earlier date on which the Commitments terminate as provided in this Agreement.

“Type” refers to whether a Loan is an Alternate Base Rate Loan or a LIBOR Loan.

“Unmatured Event of Default” means the occurrence of an event or the existence of a condition which, with the giving of notice or the passage of time, would constitute an Event of Default.

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

“Withholding Agent” means any Loan Party and Agent.

Section 1.2 Other Definitional Provisions. All definitions contained in this Agreement are equally applicable to the singular and plural forms of the terms defined. The words “hereof”, “herein”, and “hereunder” and words of similar import referring to this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, (a) all references to Articles, Sections, Annexes, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Annexes, Exhibits and Schedules to, this Agreement, (b) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented, restated or otherwise modified (subject to any restrictions on such amendments, supplements, restatements or modifications set forth in the Loan Documents), and (c) any reference herein to any Person shall be construed to include such Person’s successors and assigns (subject to the restrictions contained in the Loan Documents). In the event that, at any time, Borrower has no Subsidiaries, all references to the Subsidiaries of Borrower and the consolidation of certain financial information shall be deemed to be inapplicable until such time as Borrower has a Subsidiary. All times of day are Houston, Texas, time.

Section 1.3 Accounting Terms and Determinations; GAAP. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all determinations with respect to accounting matters hereunder shall be made, and all financial statements and certificates and reports as to financial matters required to be furnished to Agent or Lenders hereunder shall be prepared, in accordance with GAAP as in effect from time to time; provided that, if Borrower notifies Agent that it requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof or the operation of such provision (or if Agent notifies Borrower that the Majority Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such



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notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding anything to the contrary in this Agreement or any other Loan Document, for all purposes of this Agreement, GAAP will be deemed to treat leases that would have been classified as operating leases in accordance with generally accepted accounting principles in the United States as in effect prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of Accounting Standards Update No. 2016-02 (Leases) (“ASU”) in a manner consistent with the treatment of such leases under generally accepted accounting principles in the United States as in effect prior thereto, notwithstanding any modifications or interpretive changes thereto resulting from the ASU or that may occur thereafter.

ARTICLE II.
Revolving Line of Credit and Letters of Credit

Section 2.1 Revolving Line of Credit. Subject to the terms and conditions of this Agreement, each Lender agrees severally to make Revolving Advances to Borrower from time to time from the date hereof to and including the Termination Date in an aggregate principal amount at any time outstanding up to but not exceeding such Lender’s Commitment; provided that the aggregate principal amount of all Revolving Advances of such Lender at any time shall not exceed such Lender’s Commitment at such time minus such Lender’s Pro Rata Share of the Letter of Credit Liabilities at such time; and provided, further, that the aggregate principal amount of all Revolving Advances at any time outstanding shall not exceed the Combined Commitments at such time minus the sum of (a) the Letter of Credit Liabilities at such time plus (b) the aggregate principal amount of the outstanding Swing Loans at such time. Lenders shall have no obligation to make any Revolving Advance (other than a Revolving Advance to reimburse Issuing Bank for any draw on a Letter of Credit issued pursuant to the terms hereof) if an Event of Default or an Unmatured Event of Default has occurred and is continuing unless agreed to by Majority Lenders. The obligations of Lenders under the Commitments are several and not joint. The failure of any Lender to make a Revolving Advance required to be made by it shall not relieve any other Lender of its obligation to make its Revolving Advance, and no Lender shall be responsible for the failure of any other Lender to make the Revolving Advance to be made by such other Lender. Subject to the foregoing limitations, and the other terms and provisions of this Agreement, Borrower may borrow, repay and reborrow Revolving Advances hereunder.

Section 2.2 Revolving Notes. The obligation of Borrower to repay the Revolving Advances made by each Lender shall be evidenced by a Revolving Note executed by Borrower, payable to such Lender or its registered assigns, in the principal amount of such Lender’s Commitment. From time to time a new Revolving Note may be issued to another Lender hereunder as such Person becomes a party to this Agreement. From time to time Agent may require a Revolving Note to be exchanged for a newly issued Revolving Note to accurately reflect the amount of each Lender’s Commitment hereunder. Upon the request of Agent, Borrower shall execute and deliver to Agent such new Revolving Notes as requested by Agent; provided, however, that in no event will Borrower be required to (i) issue Revolving Notes in an aggregate amount which exceeds the amount of the Combined Commitments or (ii) issue Revolving Notes to any Lender in an aggregate amount which exceeds the Commitment of such Lender.



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Section 2.3 Interest. The unpaid principal amount of the Revolving Advances shall bear interest prior to maturity at a varying rate per annum equal from day to day to the lesser of (a) the Maximum Rate or (b) the Applicable Rate in effect from day to day, and each change in the rate of interest charged on the Revolving Advances shall become effective, without notice to Borrower, on the effective date of each change in the Applicable Rate or the Maximum Rate, as the case may be; provided, however, if at any time the rate of interest specified in clause (b) preceding shall exceed the Maximum Rate, thereby causing the interest on the Revolving Advances to be limited to the Maximum Rate, then any subsequent reduction in the Applicable Rate shall not reduce the rate of interest on the Revolving Advances below the Maximum Rate until the aggregate amount of interest actually accrued on the Revolving Advances equals the amount of interest which would have accrued on the Revolving Advances if the interest rate specified in clause (b) preceding had at all times been in effect. Notwithstanding the foregoing, if any Event of Default has occurred and is continuing, the outstanding principal of the Revolving Advances shall, upon the determination of the Majority Lenders, bear interest at the Default Rate.

Section 2.4 Repayment of Principal and Interest. (a) Accrued and unpaid interest on the Revolving Advances shall be payable as follows:

(i) in the case of each Revolving Advance which is an Alternate Base Rate Loan, on the last day of each March, June, September and December, commencing March 31, 2018;

(ii) in the case of each Revolving Advance which is a LIBOR Loan, on the last day of each Interest Period therefor, provided, however, if Borrower selects a six (6) month Interest Period, accrued and unpaid interest shall also be payable on the first (1st) Business Day following that day which is ninety (90) days after the first (1st) day of such six (6) month Interest Period;

(iii) upon the payment or prepayment of any Revolving Advance (but only on the principal amount so paid or prepaid); and

(iv) for all Revolving Advances, on the Termination Date.

(b) The aggregate unpaid principal amount of the Revolving Advances shall be due and payable on the Termination Date.

Section 2.5 Requests for Revolving Advances. (a) Borrower shall request each Revolving Advance by delivering to Agent a Revolving Advance Request Form (i) stating the amount of the Revolving Advance, (ii) stating the date on which Borrower desires that the Revolving Advance be funded (which shall be a Business Day), (iii) stating the Type of the Revolving Advance, and (iv) if such Revolving Advance is a LIBOR Loan, designating the Interest Period thereof. Each Revolving Advance Request Form shall be delivered to Agent (i) in the case of each Revolving Advance which is to be an Alternate Base Rate Loan, not later than 11:00 a.m. on the date on which



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Borrower desires that the Revolving Advance be funded, and (ii) in the case of each Revolving Advance which is to be a LIBOR Loan, at least three (3) Business Days before the date on which Borrower desires that the Revolving Advance be funded; provided that (y) no Revolving Advance which is a LIBOR Loan may be in an amount which is less than $250,000.00, and (z) at any time there can be no more than eight (8) Interest Periods in effect for all LIBOR Loans. Borrower at any time may redesignate the amounts of, and Convert and Continue, the Revolving Advances, subject to the terms and provisions of this Agreement, including Sections 3.7, 3.8 and 3.9 hereof.

(a) Agent shall promptly notify each Lender of each request for a Revolving Advance. No later than 12:00 p.m. on the proposed date of any Revolving Advance hereunder, each Lender shall make available to Agent at its office specified herein in immediately available funds, its Pro Rata Share of such requested Revolving Advance. After Agent’s receipt of such funds and subject to the other terms and conditions of this Agreement, Agent shall make each Revolving Advance available to Borrower.

Section 2.6 Use of Proceeds. The proceeds of the Revolving Advances shall be used for working capital and general corporate purposes. All Revolving Advances (as defined in the Prior Credit Agreement) outstanding on the Closing Date shall become Revolving Advances hereunder on the Closing Date, provided that on the Closing Date each New Lender shall purchase at par such of the Loans of the Existing Lenders (other than Swing Loans) as Agent shall determine may be necessary in order for each such New Lender to hold such Loans in accordance with its Commitment Percentage. All outstanding Swing Loans (as defined in the Prior Credit Agreement) shall become Swing Loans hereunder on the Closing Date. All Letters of Credit (as defined in the Prior Credit Agreement) issued under the Prior Credit Agreement shall become Letters of Credit hereunder on the Closing Date.

Section 2.7 Unused Commitment Fee; Reduction or Termination of Commitment.

(a) Borrower agrees to pay to Agent for the Pro Rata benefit of Lenders who have a Commitment a commitment fee on the average daily unused portion of the Combined Commitments, for the period from and including the Closing Date to and excluding the Termination Date, at the rate of one-quarter percent (0.25%) per annum based on a three hundred sixty (360) day year and the actual number of days elapsed, payable quarterly in arrears and on the Termination Date. For the purpose of calculating the commitment fee hereunder, the Combined Commitments shall be deemed utilized by the amount of all outstanding Revolving Advances, Swing Loans and Letter of Credit Liabilities.

(b) Borrower shall have the right at any time, upon revocable notice (which may be conditioned) to Agent, to terminate in whole or reduce in part, the Combined Commitments; provided, however, that such notice shall (i) be received by Agent at least three (3) Business Days prior to the effective date thereof and (ii) describe (A) the effective date of the termination, (B) the conditions to the effectiveness thereof (if any), (C) whether a termination or reduction is being made and (D) the amount of any partial reduction; provided, further, that (i) no such reduction shall be in an amount less than the lesser of (A) $250,000.00 and (B) the Combined Commitments, and (ii) the Combined Commitments shall never be reduced below an amount equal to the Letter of Credit Liabilities. At the time of such reduction, Borrower shall prepay the amount by which the unpaid



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principal amount of the Revolving Advances plus the Swing Loans plus the Letter of Credit Liabilities exceeds the Combined Commitments (after giving effect to such reduction) plus accrued and unpaid interest on the principal amount so prepaid. The Combined Commitments may not be reinstated after they have been terminated or reduced.

Section 2.8 Increase of the Combined Commitments. (a) At any time prior to the Termination Date, Borrower may effectuate increases in the aggregate Combined Commitments (each such increase being a “Combined Commitments Increase”), by designating either one or more of the existing Lenders (each of which, in its sole discretion, may determine whether and to what degree to participate in such Combined Commitments Increase) or one or more other banks or other financial institutions (acceptable to Agent) that at the time agree (y) in the case any existing Lender, to increase its Commitment (an “Increasing Lender”), and (z) in the case of any other bank or financial institution that is not an existing Lender, to provide a Commitment and become a party to this Agreement as a Lender (an “Additional Lender”); provided, however, that (i) each Combined Commitments Increase shall be in an amount at least equal to $5,000,000.00, (ii) the aggregate amount of all Combined Commitments Increases shall not exceed $50,000,000.00, and (iii) all Commitments and Revolving Advances provided pursuant to a Combined Commitments Increase shall be available on the same terms as those applicable to the existing Commitments and Revolving Advances. Borrower shall provide prompt notice of any proposed Combined Commitments Increase pursuant to clause (a) above to Agent. This Section 2.8 shall not be construed to create any obligation on Agent or any Lender to advance or to commit to advance any credit to Borrower or to arrange for any other Person to advance or to commit to advance any credit to Borrower.

(a) Upon the occurrence of a Combined Commitments Increase, the outstanding Revolving Advances and participation interests shall be reallocated by Agent and Lenders by causing such assignments (among Lenders with Commitments) of Revolving Advances, Commitments and participation interests as necessary such that, after giving effect to such Combined Commitments Increase, each Lender with a Commitment will hold Revolving Advances, Commitments and participation interests based upon its Pro Rata Share of the Combined Commitments (after giving effect to such Combined Commitments Increase and such assignments). Borrower shall be responsible for payment of any costs arising under Section 3.9 as a result of the assignments described in this paragraph (c) as though such assignments were prepayments. The fees described in paragraph (b) of Section 12.19 shall not be applicable in connection with assignments described in this paragraph (c).

Section 2.9 Swing Loans. (a) On the terms and conditions set forth in this Agreement, upon Borrower’s request on any Business Day prior to the Termination Date, Swing Lender shall make Alternate Base Rate Loans under the Swing Note (“Swing Loans”) to Borrower in an aggregate principal amount not to exceed $30,000,000.00 outstanding at any time; provided that the aggregate principal amount of the outstanding Revolving Advances, plus the Letter of Credit Liabilities, plus the aggregate principal amount of the outstanding Swing Loans shall never exceed the Combined Commitments; and provided, further, that Swing Lender shall not make Swing Loans if an Event of Default or an Unmatured Event of Default has occurred and is continuing. Subject to the other provisions of this Agreement, Borrower may from time to time borrow, prepay (in whole or in part



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and without premium or penalty) and reborrow Swing Loans. Borrower shall request a Swing Loan by written notice to Swing Lender.

(a) The unpaid principal amount of the Swing Loans shall bear interest prior to maturity at a varying rate per annum equal from day to day to the lesser of (i) the Maximum Rate or (ii) the Swing Loan-Applicable Rate in effect from day to day, and each change in the rate of interest charged on the Swing Loans shall become effective, without notice to Borrower, on the effective date of each change in the Swing Loan-Applicable Rate or the Maximum Rate, as the case may be; provided, however, if at any time the rate of interest specified in clause (b)(ii) preceding shall exceed the Maximum Rate, thereby causing the interest on the Swing Loans to be limited to the Maximum Rate, then any subsequent reduction in the Swing Loan-Applicable Applicable Rate shall not reduce the rate of interest on the Swing Loans below the Maximum Rate until the aggregate amount of interest actually accrued on the Swing Loans equals the amount of interest which would have accrued on the Swing Loans if the interest rate specified in clause (b)(ii) preceding had at all times been in effect. Notwithstanding the foregoing, if any Event of Default has occurred and is continuing, the outstanding principal of the Swing Loans shall, upon the determination of the Swing Lender, bear interest at the Default Rate.

(b) Borrower shall repay the outstanding principal amount of the Swing Loans on the Termination Date. Borrower shall pay the accrued interest on the Swing Loans on the last day of each March, June, September and December, commencing March 31, 2018. Borrower may prepay the Swing Loans, together with accrued interest thereon, at any time.

(c) If (i) any Swing Loan advanced hereunder is not repaid within five (5) Business Days following the date such Swing Loan is advanced or (ii) Swing Lender at any time in its sole and absolute discretion requests on behalf of Borrower (which Borrower hereby authorizes Swing Lender to so request on its behalf), that each Lender make a Revolving Advance that is an Alternate Base Rate Loan in an amount equal to such Lender’s Pro Rata Share of such Swing Loan then outstanding, then, upon the giving of notice to Lenders in accordance with the following sentence, each Lender shall pay to Swing Lender such Lender’s Pro Rata Share of such Swing Loan. In connection with any Revolving Advance to be made to refinance any Swing Loan as contemplated by the foregoing sentence, Swing Lender shall give a notice to Agent prior to 12:00 noon on (i) the sixth (6th) Business Day following the date such Swing Loan is advanced or (ii) such other day that Swing Lender makes a request on behalf of Borrower as set forth above, and Agent shall give each Lender a notice by 1:00 p.m. on such date, to make an Alternate Base Rate Loan in the amount of its Pro Rata Share of such Swing Loan. Each Revolving Advance made pursuant to each request made by Swing Lender pursuant to the foregoing sentence shall be considered to be a Revolving Advance, and Borrower hereby irrevocably instructs Swing Lender to apply the proceeds of such Revolving Advances to the prepayment of such Swing Loan. Each Lender (including Swing Lender in its capacity as a Lender) shall make its Pro Rata Share of such Revolving Advance available to Agent in immediately available funds by 3:00 p.m. on the date requested, and the obligation to fund such Revolving Advance shall be unconditional, irrespective of the occurrence, existence or continuance of an Event of Default or Unmatured Event of Default.



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(d) If, prior to refinancing a Swing Loan with a Revolving Advance as provided above, an Event of Default under Section 10.1(d) or 10.1(e) shall have occurred and be continuing or if for any other reason a Revolving Advance cannot be made, then each Lender will, on the date on which the Revolving Advance was to have been made or such other date as is designated by Swing Lender, purchase from the Swing Lender an undivided participation interest in all the outstanding Swing Loans in an amount equal to its Pro Rata Share of such Swing Loans. Upon request from Agent (which shall be given by Agent to Lenders immediately following receipt by Agent of notice from Swing Lender), each Lender will immediately transfer such amount to Swing Lender.

Section 2.10 Letters of Credit. Subject to the terms and conditions of this Agreement, Issuing Bank agrees to issue one or more Letters of Credit for the account of Borrower from time to time from the date hereof to and including the Business Day prior to the Termination Date; provided, however, that the Letter of Credit Liabilities shall not at any time exceed the lesser of (a) $30,000,000.00 and (b) the Combined Commitments at such time minus the sum of (i) the aggregate principal amount of the outstanding Revolving Advances at such time, plus (ii) the aggregate principal amount of the outstanding Swing Loans at such time. Each Letter of Credit shall (a) have an expiration date (i) which is not later than one year following the date of issuance of such Letter of Credit (or, in the case of any renewal or extension of a Letter of Credit, not later than one year after such renewal or extension) and (ii) which may, at the sole discretion of Issuing Bank, extend beyond the Termination Date, subject to Section 2.18, (b) be payable in Dollars, (c) be issued for general corporate purposes of Borrower or any Subsidiary and (d) otherwise be satisfactory in form and substance to Issuing Bank; provided that any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods. No Letter of Credit shall require any payment by Issuing Bank to the beneficiary thereunder pursuant to a drawing prior to the third (3rd) Business Day following presentment of a draft and any related documents to Issuing Bank. Issuing Bank shall have no obligation to issue any Letter of Credit if an Event of Default or an Unmatured Event of Default has occurred and is continuing.

Section 2.11 Procedure for Issuing Letters of Credit. Each Letter of Credit shall be issued upon receipt by Issuing Bank of written notice from an Authorized Representative requesting the issuance of such Letter of Credit, which notice shall be received by Issuing Bank at least three (3) Business Days prior to the requested date of issuance of such Letter of Credit (or such shorter period as Issuing Bank may agree). Such notice shall be accompanied by a Letter of Credit Application and such other documents as Issuing Bank may require in order to prepare such Letter of Credit. Such notice and application (both front and back sides) may be sent by fax or other electronic method. Each request for a Letter of Credit shall constitute a representation by Borrower to Issuing Bank, Agent and the other Lenders as to each of the matters set forth in the Revolving Advance Request Form, including representations that (a) immediately after giving effect to the issuance of such Letter of Credit, the sum of (i) the aggregate principal amount of the outstanding Revolving Advances plus (ii) the Letter of Credit Liabilities plus (iii) the aggregate principal amount of the outstanding Swing Loans does not exceed the Combined Commitments, and (b) at the time of and immediately after giving effect to the issuance of such Letter of Credit, no Event of Default or Unmatured Event of Default exists. To the extent that the terms and provisions of a Letter of Credit Application may conflict with or be inconsistent with the terms and provisions of this Agreement, the terms and provisions of this Agreement shall govern and control.



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Section 2.12 Participation by Lenders. By the issuance of any Letter of Credit and without any further action on the part of Issuing Bank or any Lender in respect thereof, Issuing Bank hereby grants to each Lender, and each Lender hereby agrees to acquire from Issuing Bank, a participation in each such Letter of Credit and the related Letter of Credit Liabilities, effective upon the issuance thereof without recourse or warranty, equal to such Lender’s Pro Rata Share of such Letter of Credit and the Letter of Credit Liabilities related to such Letter of Credit. Issuing Bank shall provide a copy of each Letter of Credit to each other Lender promptly after issuance thereof. This agreement to grant and acquire participations is an agreement between Issuing Bank and Lenders, and neither Borrower nor any beneficiary of a Letter of Credit shall be entitled to rely thereon. Borrower agrees that each Lender purchasing a participation from Issuing Bank pursuant to this Section 2.12 may exercise all of its rights to payment against Borrower including the right of setoff, with respect to such participation as fully as if such Lender were the direct creditor of Borrower in the amount of such participations.

Section 2.13 Payments Constitute Revolving Advances. Each payment by Issuing Bank pursuant to a drawing under a Letter of Credit shall constitute and be deemed a Revolving Advance by Issuing Bank to Borrower under the Revolving Notes and this Agreement as of the day and time such payment is made by Issuing Bank and in the amount of such payment. Each Lender shall make available to Issuing Bank in immediately available funds its Pro Rata Share of such Revolving Advance in the manner provided in Section 2.5 hereof upon notice given by Issuing Bank in the manner provided in Section 2.5 for notices given by Agent. Notwithstanding the foregoing, if, prior to paying a drawing on a Letter of Credit with a Revolving Advance as provided above, an Event of Default under Section 10.1(d) or Section 10.1(e) shall have occurred and be continuing or if for any other reason a Revolving Advance cannot be made, then each Lender will, on the date on which the Revolving Advance was to have been made to pay such drawing or such other date as is designated by Issuing Bank, purchase from Issuing Bank an undivided participation interest in such Letter of Credit in an amount equal to its Commitment Percentage times the amount of such drawing. Upon request from Agent (which shall be given by Agent to Lenders immediately following receipt of notice by Agent from Issuing Bank), each Lender will immediately transfer such amount to Issuing Bank.

Section 2.14 Letter of Credit Fees. Borrower shall pay to Agent for the ratable benefit of Lenders a letter of credit participation fee, payable quarterly in arrears, in an amount equal to (a) for a commercial Letter of Credit, the greater of (i) one percent (1.0%) per annum of the stated amount of such commercial Letter of Credit for the period during which such commercial Letter of Credit will remain outstanding (based on a three hundred sixty (360) day year and the actual number of days to elapse), and (ii) $250.00, and (b) for a standby Letter of Credit, the greater of (i) two percent (2.0%) per annum of the stated amount of such standby Letter of Credit for the period during which such standby Letter of Credit will remain outstanding (based on a three hundred sixty (360) day year and the actual number of days to elapse), and (ii) $250.00. At the time of issuance of each Letter of Credit, Borrower shall also pay to Issuing Bank a letter of credit fee in an amount equal to one-eighth of one percent (⅛%) of the stated amount of such Letter of Credit. In addition, Borrower shall pay to Issuing Bank (a) at the time of issuance of any Letter of Credit, all reasonable out-of-pocket costs incurred by Issuing Bank in connection with the issuance of such Letter of Credit, (b) upon the payment of any Letter of Credit, Issuing Bank’s standard letter of credit payment



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fees (if any) with respect to such payment, and (c) upon the amendment (including the extension) of any Letter of Credit, Issuing Bank’s standard letter of credit amendment fees (if any) with respect to such amendment.

Section 2.15 Obligations Absolute. The obligations of Borrower to reimburse Issuing Bank and Lenders, as applicable, for payment of drawings under any Letter of Credit shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement and the other Loan Documents under all circumstances, including (a) any lack of validity or enforceability of any Letter of Credit or any other Loan Document, (b) the existence of any claim, set-off, counterclaim, defense or other rights which any Subsidiary or any other Person may have at any time against any beneficiary of any Letter of Credit, Issuing Bank, Agent, any Lender, or any other Person, whether in connection with this Agreement or any other Loan Document or any unrelated transaction, (c) if any statement, draft or other document presented under any Letter of Credit proves to be forged, fraudulent, invalid or insufficient in any respect or any statement therein is untrue or inaccurate in any respect whatsoever, (d) payment by Issuing Bank under any Letter of Credit against presentation of a draft or other document which does not comply with the terms of such Letter of Credit in a manner which is not material, (e) any amendment or waiver of, or any consent to departure from, any Loan Document or (f) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, Borrower’s obligations hereunder.

Section 2.16 Limitation of Liability. Borrower assumes all risks of the acts or omissions of any beneficiary of any Letter of Credit with respect to its use of such Letter of Credit. None of Issuing Bank, Agent, any Lender or any of their officers, employees or directors shall have any responsibility or liability to Borrower or any other Person for (a) the failure of any draft to bear any reference or adequate reference to any Letter of Credit, or the failure of any documents to accompany any draft at negotiation, or the failure of any Person to surrender any Letter of Credit or to send documents apart from drafts as required by the terms of any Letter of Credit, or the failure of any Person to note the amount of any instrument on any Letter of Credit, (b) errors, omissions, interruptions or delays in transmission or delivery of any messages relating to any Letter of Credit, (c) the validity, sufficiency or genuineness of any draft or other document, or any endorsement thereon, even if any such draft, document or endorsement should in fact prove to be in any and all respects invalid, insufficient, fraudulent or forged or any statement therein is untrue or inaccurate in any respect, (d) payment by Issuing Bank to the beneficiary of any Letter of Credit against presentation of any draft or other document that does not comply with the terms of such Letter of Credit in a respect which is not material or (e) any other circumstance whatsoever in making or failing to make any payment under a Letter of Credit. Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. Notwithstanding the foregoing, Issuing Bank shall be liable to Borrower to the extent of any direct, but not consequential, damages suffered by Borrower which Borrower proves in a final nonappealable judgment were caused by (i) Issuing Bank’s willful misconduct or gross negligence in determining whether documents presented under any Letter of Credit comply with the terms thereof or (ii) Issuing Bank’s willful failure to pay under any Letter



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of Credit after presentation to it of documents strictly complying with the terms and conditions of such Letter of Credit.

Section 2.17 Provisions Regarding Electronic Issuance of Letters of Credit. Issuing Bank may adopt procedures pursuant to which Borrower may request the issuance of Letters of Credit by electronic means and Issuing Bank may issue Letters of Credit based on such electronic requests. Such procedures may include the submission by Borrower of Letter of Credit Applications electronically.

Section 2.18 Cash Deposit Prior to Termination Date. If Letters of Credit are to be outstanding after the Termination Date, not later than five (5) Business Days prior to the Termination Date, Borrower will deposit with Issuing Bank cash, or pledge to Issuing Bank (in a manner satisfactory to Issuing Bank) cash equivalent investments or other collateral acceptable to Issuing Bank, or a combination thereof, in an amount equal to the sum of the amounts available to be drawn under the Letters of Credit which will remain outstanding after the Termination Date.

Section 2.19 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

(a) any and all fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender pursuant to Section 2.7;

(b) the Commitment of such Defaulting Lender shall not be included in determining whether all Lenders or Majority Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 2.1 or Section 12.7), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders shall require the consent of such Defaulting Lender;

(i) all or any part of the Swing Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Commitment Percentages (for the purposes of such reallocation, such Defaulting Lender’s Commitment shall be disregarded in determining the non-Defaulting Lenders’ Commitment Percentages), but only to the extent that (x) the sum of each non-Defaulting Lender’s Credit Exposure plus its reallocated share of such Defaulting Lender’s Swing Exposure and LC Exposure does not exceed such non-Defaulting Lender’s Commitment, (y) the sum of all non-Defaulting Lenders’ Credit Exposures plus such Defaulting Lender’s Swing Exposure and LC Exposure does not exceed the Commitments of all non-Defaulting Lenders, and (z) no Event of Default has occurred and is continuing at such time;

(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, Borrower shall, within three (3) Business Days following Borrower’s receipt



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of written notice by Agent, (y) first, prepay such Swing Loans and (z) second, deposit with Agent cash, or pledge to Agent (in a manner satisfactory to Agent) cash equivalent investments or other collateral acceptable to Agent, or a combination thereof, in an amount equal to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 10.3 for so long as such LC Exposure is outstanding;

(iii) if Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.14 with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;

(iv) if the LC Exposures of the non-Defaulting Lenders are reallocated pursuant to Section 2.19(c), then the fees payable to Lenders pursuant to Section 2.7 and Section 2.14 shall be adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Share of the Letter of Credit Liabilities after giving effect to such reallocation; and

(v) if there is neither reallocation nor cash collateralization pursuant to the above subsections of this Section 2.19(c), then, without prejudice to any rights or remedies of Issuing Bank or any Lender hereunder, all fees due under Section 2.14 with respect to such Defaulting Lender’s LC Exposure shall be payable to Issuing Bank until such Defaulting Lender’s LC Exposure is cash collateralized and/or reallocated; and

(d) so long as any Lender is a Defaulting Lender, the Swing Lender shall not be required to fund any Swing Loan and Issuing Bank shall not be required to issue, amend or increase any Letter of Credit, unless the Swing Lender or Issuing Bank, as applicable, is satisfied that the related exposure will be covered one hundred percent (100%) by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by Borrower in accordance with Section 2.19(c)(iii), and participating interests in any such newly made Swing Loan or newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(iv) (and Defaulting Lenders shall not participate therein).

In the event that Agent, Borrower, the Swing Lender and Issuing Bank each agree that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Swing Exposures and LC Exposures of Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment, and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swing Loans) as Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Commitment Percentage. The rights and remedies against, and with respect to, a Defaulting Lender under this Section 2.19 are in addition to, and cumulative and not in limitation of, all other rights and remedies that Agent, Issuing Bank, the Swing Lender, Lenders, Borrower and Guarantors may at any time have against, or with respect to, such Defaulting Lender.

Section 2.20 Failure of Lender to Make Loans or Payments. If any Lender shall fail to make any Loan or payment required to be made by it, then Agent may, in its discretion and notwithstanding any contrary provision hereof, (a) apply any amounts thereafter received by Agent



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for the account of such Lender to satisfy such Lender’s obligations to make such Loan and/or payment until all such unsatisfied obligations are fully paid, and/or (b) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender to make such Loan and/or payment; in the case of each of (a) and (b) above, in any order as determined by Agent in its discretion.

Section 2.21 Mitigation Obligations; Replacement of Lenders.

(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.8, or Borrower is or will be required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.10, then such Lender shall (at the request of Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.8 or 3.10, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be materially disadvantageous to such Lender. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b) Replacement of Lenders. If (i) any Lender requests compensation under Section 3.5 or Borrower is or will be required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.10, or (ii) any Lender becomes a Defaulting Lender, then Borrower may, at its sole expense and effort, upon notice to such Lender and Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 12.19), all its interests, rights and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (1) Borrower shall have received the prior written consent of Issuing Bank and, if such assignee is not already a Lender hereunder, Agent, which consent of Issuing Bank and Agent (if applicable) shall not be unreasonably withheld, conditioned or delayed and (2) such Lender shall have received payment of an amount equal to the outstanding principal of its Revolving Advances, participations in Letters of Credit and Swing Exposure, accrued interest thereon, accrued fees and all other amounts payable to it hereunder (including compensation due and owing under Section 3.5 and all amounts due and owing under Section 3.10), from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrower (in the case of all other amounts).

ARTICLE III.
Payments; Additional Matters with Respect to
LIBOR Loans; Yield Protection Provisions

Section 3.1 Method of Payment. Subject to Section 3.10(b), all payments of principal, interest and other amounts to be made by Borrower under this Agreement, the Notes or any other Loan Document shall be made to Agent at its designated office specified herein in immediately available funds, without setoff, deduction (other than for Taxes, as permitted under Section 3.10), or counterclaim, not later than 11:00 a.m. on the date that such payment shall become due (and each



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such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). Subject to Section 3.10(b), each payment received by Agent under this Agreement or any other Loan Document for the account of a Lender shall be paid promptly to such Lender, in immediately available funds, at such Lender’s office designated herein; provided, however, in the event any Lender fails to fund any Revolving Advance required to be funded by it and Agent or another Lender or Lenders shall have funded such Revolving Advance on behalf of such Lender, any payment received by Agent for the account of such non-funding Lender shall not be distributed to such Lender until such Revolving Advance shall have been repaid in full to Agent or the Lender or Lenders who funded such Revolving Advance on behalf of such Lender. Whenever any payment under this Agreement, any Note or any other Loan Document shall be stated to be due on a day that is not a Business Day, such payment may be made on the next Business Day, and interest shall continue to accrue during such extension.

Section 3.2 Sharing of Payments, etc./Non-Receipt of Funds by Agent.

(a) If any Lender shall obtain any payment (whether voluntary, involuntary or otherwise) on account of Revolving Advances (including, without limitation, any set-off), which is in excess of its Pro Rata Share of payments on the Revolving Advances obtained by all Lenders, such Lender shall purchase from the other Lenders such participations in the Revolving Advances of the other Lenders as shall be necessary to cause such purchasing Lender to share the excess payment Pro Rata with each of the other Lenders; provided that (i) if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of recovery and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by 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 Revolving Advances to any assignee or participant. Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this paragraph may, to the fullest extent permitted by law, exercise all of its rights of payment (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of Borrower in the amount of such participation.

(b) Unless Agent shall have been notified by a Lender or Borrower (the “Payor”) prior to the date on which such Lender is to make payment to Agent of the proceeds of a Revolving Advance to be made by it hereunder or Borrower is to make a payment to Agent for the account of one or more of Lenders, as the case may be (a “Required Payment”), which notice shall be effective upon receipt, that the Payor does not intend to make the Required Payment to Agent, Agent may assume that the Required Payment has been made and may, in reliance upon such assumption (but shall not be required to), make the amount thereof available to the intended recipient on such date and, if the Payor has not in fact made the Required Payment to Agent, the recipient of such payment shall, on demand, pay to Agent the amount made available to it together with interest thereon in respect of the period commencing on the date such amount was made available by Agent until the date Agent recovers such amount at the rate applicable to such portion of the applicable Revolving Advance.



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Section 3.3 Voluntary Prepayment. Borrower may prepay the Notes in whole at any time or from time to time in part without premium or penalty. Each prepayment of the Notes shall be accompanied by all accrued and unpaid interest to the date of prepayment on the amount so prepaid, together with any additional amounts required pursuant to Section 3.9.

Section 3.4 Computation of Interest. Interest on the indebtedness evidenced by the Notes shall be computed on the basis of a year of (a) three hundred sixty (360) days and the actual number of days elapsed (including the first day but excluding the last day) for all LIBOR Loans unless such calculation would result in a usurious rate, in which case interest shall be calculated on the basis of a year of three hundred sixty-five (365) or three hundred sixty-six (366) days, as the case may be, and (b) three hundred sixty-five (365) or three hundred sixty-six (366) days, as the case may be, for all Alternate Base Rate Loans.

Section 3.5 Capital Adequacy.

(a) If, after the date hereof, any Lender shall have determined in good faith that a Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s capital (or the capital of such Lender’s parent company, if any) as a consequence of its obligations hereunder or the transactions contemplated hereby to a level below that which such Lender (or its parent company) could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s parent company with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time to time, subject to paragraphs (b) and (c) of this Section, Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender (or its parent company) for any such reduction actually suffered.

(b) A certificate of such Lender claiming compensation under this Section and setting forth the additional amount or amounts necessary to compensate such Lender or such Lender’s parent company, as the case may be, including in reasonable detail a description of the basis for such claim for compensation and a calculation of such amount or amounts, shall be delivered to Borrower and shall be conclusive absent manifest error, provided that the determination of such amount or amounts is made on a reasonable basis. In determining such amount or amounts, such Lender may use any reasonable averaging and attribution methods. Borrower shall pay such Lender the amount shown as due on any such certificate within thirty (30) days after receipt thereof.

(c) Failure or delay on the part of any Lender to demand compensation pursuant to this Section 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 pursuant to this Section for any increased costs or reductions incurred more than one hundred eighty (180) days prior to the date that such Lender notifies Borrower in writing 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 one hundred eighty (180) day period referred to above shall be extended to include the period of retroactive effect thereof.



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Section 3.6 Additional Costs in Respect of Letters of Credit.

(a) If as a result of any Regulatory Change there shall be imposed, modified or deemed applicable any Tax (other than any Indemnified Tax or Excluded Tax), reserve, special deposit, or similar requirement against or with respect to or measured by reference to Letters of Credit issued or to be issued hereunder or Issuing Bank’s commitment to issue Letters of Credit hereunder, and the result shall be to increase the cost to Issuing Bank of issuing or maintaining any Letter of Credit or its commitment to issue Letters of Credit hereunder or reduce any amount receivable by Issuing Bank hereunder in respect of any Letter of Credit (which increase in cost or reduction in amount receivable, shall be the result of Issuing Bank’s reasonable allocation of the aggregate of such increases or reductions resulting from such event), then from time to time, subject to paragraphs (b) and (c) of this Section, Borrower shall pay to Issuing Bank such additional amount or amounts as will compensate Issuing Bank for such increased costs or reductions in amount.

(b) A certificate of Issuing Bank claiming compensation under this Section and setting forth the additional amount or amounts necessary to compensate Issuing Bank, including in reasonable detail a description of the basis for such claim for compensation and a calculation of such amount or amounts, shall be delivered to Borrower and shall be conclusive absent manifest error, provided that the determination of such amount or amounts is made on a reasonable basis. Borrower shall pay Issuing Bank the amount shown as due on any such certificate within thirty (30) days after receipt thereof.

(c) Failure or delay on the part of Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of Issuing Bank’s right to demand such compensation; provided that Borrower shall not be required to compensate Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than one hundred eighty (180) days prior to the date that Issuing Bank notifies Borrower in writing of the Regulatory Change giving rise to such increased costs or reductions and of Issuing Bank’s intention to claim compensation therefor; provided further that, if the Regulatory Change giving rise to such increased costs or reductions is retroactive, then the one hundred eighty (180) day period referred to above shall be extended to include the period of retroactive effect thereof.

Section 3.7 Conversions and Continuations. Borrower shall have the right from time to time to Convert any Loan from one Type of Loan into another Type of Loan or to Continue any LIBOR Loan as a LIBOR Loan by giving Agent written notice (a) for Conversion into an Alternate Base Rate Loan, not later than 11:00 a.m. on the date on which Borrower desires that the Conversion occur (which shall be a Business Day), in which case such Loan shall be Converted into an Alternate Base Rate Loan on such date, and (b) for Continuation of or Conversion into a LIBOR Loan, not later than 11:00 a.m. three (3) Business Days before the effective date of such Conversion or Continuation, specifying (i) the Conversion or Continuation date (which shall be a Business Day), (ii) in the case of Conversions, the Type of Loan to be Converted into, and (iii) in the case of a Continuation of or Conversion into a LIBOR Loan, the duration of the Interest Period to be applicable thereto after giving effect to such election; provided that (x) no Loan which is a LIBOR Loan may be in an amount which is less than $250,000.00, (y) at any time there can be no more than eight (8) Interest Periods in effect for all LIBOR Loans, and (z) except for Conversions to Alternate Base



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Rate Loans, no Lender shall have an obligation to make any Conversions while an Event of Default or an Unmatured Event of Default has occurred and is continuing. All notices under this Section shall be irrevocable once given. If Borrower shall fail to give Agent the notice specified above for Continuation or Conversion of any LIBOR Loan prior to the end of the Interest Period with respect thereto, such LIBOR Loan shall automatically be Converted into an Alternate Base Rate Loan on the last day of such Interest Period.

Section 3.8 Illegality, Impossibility, Regulatory Change; Change in Law and Compensation. In the event that (a) it becomes unlawful for any Lender to honor its obligation to make LIBOR Loans hereunder or to maintain LIBOR Loans hereunder, (b) Agent determines that (i) quotations of interest rates for the relevant deposits referred to in the definition of “LIBOR Rate” are not being provided in the relative amounts or for the relative maturities for determining the interest rates borne by the LIBOR Loans as provided in this Agreement or (ii) such quotations do not accurately reflect any Lender’s costs of making or maintaining its LIBOR Loans, or (c) a Regulatory Change (including the imposition of a Reserve Requirement) or any change in law occurs which changes any Lender’s basis of taxation (other than by imposing, changing the rate of, otherwise changing, or making any change related to any Indemnified Tax and/or Excluded Tax) with respect to LIBOR Loans or imposes reserve, capital or other similar requirements with respect thereto, then (x) such Lender shall notify Borrower of any such event, (y) Borrower shall promptly pay to such Lender such amounts as such Lender may determine (which determination shall be conclusive provided such determination is made on a reasonable basis) to be necessary to compensate such Lender for any increased costs incurred by such Lender or decreases in amounts receivable by such Lender which such Lender determines are attributable to any event described in clauses (a), (b) or (c) above, and (z) the obligation of such Lender to make or Continue LIBOR Loans or to Convert Alternate Base Rate Loans to LIBOR Loans shall terminate, and (i) all future Loans shall be Alternate Base Rate Loans and (ii) all outstanding Loans which are LIBOR Loans shall be Converted to Alternate Base Rate Loans on the last day of the current Interest Period therefor.

Section 3.9 Compensation for Prepayment or Failure to Borrow. Borrower shall pay to Agent in accordance with this Section, promptly upon the request of Agent, such amount or amounts as shall be sufficient to compensate any Lender for any reasonable loss, cost or expense (including any reasonable losses and expenses arising from the liquidation or reemployment of deposits acquired to fund or maintain any principal amount prepaid) incurred by such Lender as a result of (a) any payment, prepayment or Conversion of any LIBOR Loan on a day other than the last day of an Interest Period therefor (a “LIBOR Prepayment”) or (b) the failure by Borrower to borrow, Convert or prepay a LIBOR Loan on any date required hereby. Such reimbursement shall be calculated as though such Lender funded the principal amount paid, prepaid, Converted or not borrowed through the purchase of Dollar deposits in the London, England interbank market having a maturity corresponding to last day of the Interest Period for the amount paid, prepaid, Converted or to be borrowed and bearing an interest rate equal to the LIBOR Rate for such principal amount for such Interest Period, whether in fact that is the case or not. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section, including in reasonable detail a description of the basis for such compensation and a calculation of such amount or amounts, shall be delivered to Borrower and Agent and shall be conclusive absent manifest error, provided that the determination thereof is made on a reasonable basis. Borrower shall pay



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such Lender the amount shown as due on any such certificate within thirty (30) days after receipt thereof. On the date of any LIBOR Prepayment, interest shall be due and payable on the principal amount so paid, prepaid or Converted.

Section 3.10 Taxes.

(a) Defined Terms. For purposes of this Section 3.10, the term “Lender” includes Issuing Bank and the term “applicable law” includes FATCA.

(b) Payments Free of Taxes. Any and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable Loan Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings for Indemnified Tax applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding for Indemnified Tax been made.

(c) Payment of Other Taxes by Borrower. Loan Parties shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of Agent, timely reimburse Agent for the payment of, any Other Taxes; provided that no payments shall be due pursuant to this paragraph (c) to the extent that such payment is duplicative of any payment otherwise made by a Loan Party pursuant to any other Section of this Agreement or any Loan Document.

(d) Indemnification by Loan Parties. Loan Parties shall jointly and severally indemnify each Recipient, within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority; provided that no Loan Party shall be required to indemnify a Recipient with respect to any Indemnified Taxes unless such Recipient notifies the applicable Loan Party of the indemnification claim for such Indemnified Taxes no later than six months after the earlier of (i) the date on which the relevant Governmental Authority makes written demand upon the Recipient for payment of such Indemnified Taxes, and (ii) the date on which such Recipient has made payment of such Indemnified Taxes. For the avoidance of doubt, no indemnification payments shall be due to such Recipient under this paragraph (d) to the extent that such payment is duplicative of any payment otherwise made by a Loan Party to such Recipient pursuant to this Section 3.10, any other Section of this Agreement or any Loan Document. Notwithstanding anything to the contrary in this Agreement or any Loan Document, no Loan Party shall be required to indemnify, or pay any additional amounts to, any Recipient or any other Person pursuant to this Agreement or any other Loan Document (x) for or with respect to Indemnified Taxes, other than



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pursuant to this Section 3.10, or (y) for or with respect to any Excluded Taxes (or any Taxes that would be Excluded Taxes if all relevant Persons were Recipients). A certificate as to the amount of such payment or liability and setting forth in reasonable detail the basis and calculation of such payment or liability delivered to Borrower by a Lender (with a copy to Agent), or by Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(e) Indemnification of Lenders. Each Lender shall severally indemnify Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified Agent for such Indemnified Taxes and without limiting the obligation of Loan Parties to do so), (ii) any Taxes attributable to such Lender’s failure to maintain a register of any participants to which it has sold a portion of the Obligations and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by 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 Agent shall be conclusive absent manifest error. Each Lender hereby authorizes 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 Agent to such Lender from any other source against any amount due to Agent under this paragraph (e).

(f) Evidence of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 3.10, such Loan Party shall deliver to Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Agent.

(g) Status of Lender. (i) Any Lender (which, solely for purposes of this Section 3.10(g), shall include Agent) that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to Borrower and Agent, at the time or times reasonably requested by Borrower or Agent, such properly completed and executed documentation reasonably requested by Borrower or Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower or Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower or Agent as will enable Borrower or Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.10(g)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in such 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.

(i) Without limiting the generality of the foregoing,

(A) any Lender that is a U.S. Person shall deliver to Borrower and Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Agent),



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properly completed and executed originals of IRS Form W-9 (or any successor form) certifying that such Lender is exempt from U.S. federal backup withholding Tax;

(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Agent), whichever of the following is applicable:

(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, properly completed and executed originals of IRS Form W-8BEN (or any successor form) or W-8BEN-E (or any successor form), as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, properly completed and executed originals of IRS Form W-8BEN (or any successor form) or W-8BEN-E (or any successor form), as applicable, establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2) properly completed and executed originals of IRS Form W-8ECI (or any successor form);

(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate reasonably acceptable to Agent and Borrower to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of 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 (a “U.S. Tax Compliance Certificate”) and (y) property completed and executed originals of IRS Form W-8BEN (or any successor form) or W-8BEN-E (or any successor form), as applicable; or

(4) to the extent a Foreign Lender is not the beneficial owner of the Obligations, properly completed and executed originals of IRS Form W-8IMY (or any successor form), accompanied by IRS Form W-8ECI (or any successor form), IRS Form W-8BEN (or any successor form), IRS Form W-8BEN-E (or any successor form), a U.S. Tax Compliance Certificate reasonably acceptable to Agent and Borrower, IRS Form W-9 (or any successor form), and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S.



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Tax Compliance Certificate reasonably acceptable to Agent and Borrower on behalf of each such direct and indirect partner;

(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Taxes, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Borrower or Agent to determine the withholding or deduction required to be made; and

(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower and Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Agent as may be necessary for Borrower and Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

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

(ii) On or before the date that Amegy (and any successor or replacement Agent) becomes Agent hereunder, it shall deliver to Borrower a copy of either (i) a properly completed and executed IRS Form W-9 (or any successor form) or (ii) a properly completed and executed U.S. branch withholding certificate on IRS Form W-8IMY (or any successor form) evidencing its agreement with Borrower to be treated as a U.S. Person (with respect to amounts received on account of any Lender) and IRS Form W-8ECI (or any successor form) (with respect to amounts received on its own account), with the effect that, in any case, Borrower will be entitled to make payments hereunder to Agent without withholding or deduction on account of U.S. federal withholding Tax.

(h) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.10 (including by the payment of additional amounts pursuant to this Section 3.10), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund),



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net of all reasonable out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Taxes position than the indemnified party would have been in if the 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 Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. For purposes of this paragraph, all references to “refund” shall include the monetary benefit of a credit received in lieu of a refund of Taxes.

(i) Survival. Each party’s obligations under this Section 3.10 shall survive the resignation or replacement of Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Combined Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

ARTICLE IV.
Setoff and Guaranty Agreement

Section 4.1 Setoff. If an Event of Default has occurred and is continuing, Agent, Issuing Bank and each Lender, or any of the foregoing, shall have the right and are hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply against the Obligations in such a manner as such Person may determine, at any time and without notice to Borrower, any and all deposits (general or special, time or demand, provisional or final) held in any Proprietary Account maintained by Agent, Issuing Bank or such Lender, whether or not the Obligations are then due. The rights and remedies of Agent, Issuing Bank and each Lender hereunder are in addition to other rights and remedies (including, without limitation, to the rights of setoff) which such Person may have.

Section 4.2 Guaranty Agreement. Each Guarantor shall unconditionally and irrevocably guarantee payment and performance of the Obligations by execution and delivery of the Guaranty Agreement. Notwithstanding the foregoing, amounts received from any Guarantor that is not an Eligible Contract Participant shall not be applied to any Obligations that are Excluded Swap Obligations.

ARTICLE V.
Conditions Precedent

Section 5.1 Initial Extension of Credit. The obligation of Lenders to fund any amounts hereunder is subject to satisfaction (or waiver) of the condition precedent that prior thereto Agent



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shall have received all of the documents set forth below in this Section 5.1 in form and substance satisfactory to Agent.

(a) Certificates.

(i) A certificate of the Secretary or Assistant Secretary of Borrower (or another officer of Borrower acceptable to Agent) certifying (A) resolutions of the board of directors of Borrower which authorize the execution, delivery and performance by Borrower of this Agreement and the other Loan Documents to which Borrower is or is to be a party, and (B) the names of the officers of Borrower authorized to sign this Agreement and each of the other Loan Documents to which Borrower is or is to be a party as of the Closing Date, together with specimen signatures of such officers.

(ii) A certificate of the Chief Financial Officer of Borrower certifying (A) that all representations and warranties in this Agreement and the other Loan Documents are true and correct, (B) that no Event of Default or Unmatured Event of Default has occurred and is continuing, (C) that no Material Adverse Effect has occurred since December 31, 2016, and (D) that no event has occurred and no condition exists which could reasonably be expected to have a Material Adverse Effect.

(b) Organizational Documents. The certificate of incorporation and the bylaws of Borrower, certified by the Secretary or Assistant Secretary of Borrower (or another officer of Borrower acceptable to Agent).

(c) Governmental Certificates. Certificates issued by the appropriate government officials of the state of incorporation of Borrower as to the existence and good standing of Borrower in such state.

(d) Certificate - Guarantors. A certificate of the Secretary or Assistant Secretary of each Guarantor (or another officer of such Guarantor acceptable to Agent) certifying (i) resolutions of the governing body of such Guarantor which authorize the execution, delivery and performance by such Guarantor of each of the Loan Documents to which such Guarantor is or is to be a party as of the Closing Date and (ii) the names of the officers of such Guarantor authorized to sign each of the Loan Documents to which such Guarantor is or is to be a party, together with specimen signatures of such officers.

(e) Organizational Documents - Guarantors. The Organizational Documents of each Guarantor, certified by the Secretary or Assistant Secretary of such Guarantor (or another officer of such Guarantor acceptable to Agent).

(f) Governmental Certificates - Guarantors. Certificates issued by the appropriate government officials of the state of organization of each Guarantor as to the existence and good standing of such Guarantor in such state.

(g) Notes. (i) Revolving Notes executed by Borrower payable to the order of Lenders and (ii) a Swing Note executed by Borrower payable to the order of Swing Lender.



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(h) Pledge of Bermuda Subsidiary.

(i) A Pledge Agreement executed by the owner of the ownership interests of the Bermuda Subsidiary pledging sixty five percent (65%) of its ownership interests in the Bermuda Subsidiary to Agent.

(ii) A Uniform Commercial Code search showing all financing statements and other documents or instruments on file against the owner of the ownership interests of the Bermuda Subsidiary in the office of the Secretary of State of Delaware.

(iii) Uniform Commercial Code financing statements showing the owner of the ownership interests of the Bermuda Subsidiary as debtor.

(iv) An original stock certificate evidencing sixty-five percent (65%) of Bermuda Subsidiary’s ownership interests and an executed stock power related thereto.

(i) Guaranty Agreement. The Guaranty Agreement executed by each Guarantor in existence on the date hereof.

(j) Insurance Policies. A summary of insurance coverage of Borrower and its Subsidiaries evidencing that they are carrying insurance in compliance with the requirements of Section 7.6.

(k) Opinion of Counsel. (i) An opinion of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., legal counsel to Borrower and Guarantors, and (ii) an opinion of legal counsel to the Bermuda Subsidiary.

(l) Fees and Expenses.

(i) Evidence that the costs and expenses (including reasonable attorneys’ fees) referred to in Section 12.1, to the extent invoiced prior to the Closing Date, have been paid in full by Borrower.

(ii) Evidence that all fees referenced in the term sheet have been paid in full by Borrower.

Section 5.2 All Extensions of Credit. The obligation of Lenders to make any Revolving Advance and Issuing Bank to issue any Letter of Credit (including the initial Revolving Advance and the initial Letter of Credit) is subject to satisfaction (or waiver) of the following conditions:

(a) Agent or Issuing Bank, as applicable, shall have received the items required by Section 2.5 or 2.11, as applicable;

(b) the representations and warranties contained in Article VI hereof and the other Loan Documents shall, to Borrower’s knowledge, be true and correct on and as of the date of such Revolving Advance and/or Letter of Credit issuance, as applicable, with the same force and effect as if such representations and warranties had been made on and as of such date, except to the extent



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any such representations and warranties are expressly limited to an earlier date, in which case such representations and warranties shall continue to be true and correct as of such earlier date; and

(c) at the time of and immediately after giving effect to such Revolving Advance or such Letter of Credit issuance, no Event of Default or Unmatured Event of Default shall have occurred and be continuing.

ARTICLE VI.
Representations and Warranties

To induce Agent, Issuing Bank and Lenders to enter into this Agreement, Borrower represents and warrants to each such Person that:

Section 6.1 Existence. Each of Borrower and each Subsidiary (a) is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, (b) has all requisite power and authority to own its assets and carry on its business as now being or as proposed to be conducted and (c) is qualified to do business in all jurisdictions where such qualification is necessary, except, in the case of this clause (c), where the failure to do so would not reasonably be expected to result in a Material Adverse Effect. Borrower has the power and authority to execute, deliver and perform its obligations under this Agreement and the other Loan Documents to which it is or may become a party.

Section 6.2 Financial Statements. Borrower has delivered to Agent audited consolidated financial statements of Borrower and its Subsidiaries as at and for the fiscal year ended December 31, 2016, and unaudited consolidated financial statements of Borrower and its Subsidiaries for the fiscal quarter ending September 30, 2017. Such financial statements have been prepared in accordance with GAAP, and fairly present in all material respects, on a consolidated basis, the financial condition of Borrower and its Subsidiaries as of the respective dates indicated therein and the results of operations for the respective periods indicated therein. Neither Borrower nor any of its Subsidiaries has any material contingent liabilities, liabilities for Taxes, material forward or long-term commitments, or unrealized or anticipated losses from any unfavorable commitments that are not either (x) reflected in such financial statements or (y) otherwise disclosed to Agent prior to the Closing Date.

Section 6.3 Requisite Action; No Breach. The execution, delivery and performance by Borrower of this Agreement and the other Loan Documents to which Borrower is or may become a party (a) have been duly authorized by all requisite action on the part of Borrower, (b) do not violate the Organizational Documents of Borrower, (c) do not violate in any material respect any law, rule or regulation of any Governmental Authority applicable to Borrower or any of its properties, or any order, writ, injunction or decree of any court, Governmental Authority or arbitrator applicable to Borrower or any of its properties, and (d) do not result in a breach of, or constitute a default under, or result in the imposition of any Lien (except as permitted by this Agreement) upon any of the revenues or assets of Borrower or any Subsidiary pursuant to the provisions of, any indenture, mortgage, deed of trust, security agreement, franchise, permit, license or other instrument or agreement (x) that is material to Borrower and its Subsidiaries and (y) by which Borrower or any Subsidiary or any of their respective properties is bound.



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Section 6.4 Operation of Business. Each of Borrower and its Subsidiaries possess all licenses, permits, approvals and other governmental authorizations necessary for the ownership of its property and the conduct of its business, except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect.

Section 6.5 Litigation and Judgments. Except as set forth on Schedule 6.5, there is no action, suit, investigation, or proceeding before or by any Governmental Authority pending, or to the knowledge of Borrower, threatened in writing against Borrower or any Subsidiary that would reasonably be expected to have a Material Adverse Effect.

Section 6.6 Rights in Properties; Liens. Borrower and each Subsidiary have good title to, or valid leasehold interests in, their respective properties and assets (real and personal) necessary for the conduct of its business, subject, with respect to all real property owned by Borrower or a Subsidiary, to encumbrances consisting of easements, zoning restrictions or other restrictions on the use of real property that do not (individually or in the aggregate) materially impair the ability of Borrower or any Subsidiary to use such assets in its business, and none of which is violated in any material respect by existing structures or land use, and none of such properties, assets or leasehold interests is subject to any Lien, except as permitted by this Agreement.

Section 6.7 Enforceability. This Agreement constitutes, and the other Loan Documents to which Borrower is a party, when delivered, shall constitute, the legal, valid, and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms, except as enforceability thereof may be limited by bankruptcy, insolvency or other laws of general application relating to the enforcement of creditor’s rights and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.

Section 6.8 Approvals. No authorization, approval, or consent of, and no filing or registration with, any Governmental Authority or third party is or will be necessary for the execution, delivery or performance by Borrower of this Agreement and the other Loan Documents to which Borrower is or may become a party or the validity or enforceability thereof, except (i) such as have been obtained or made and are in full force and effect and (ii) the filing of any required documents with the SEC after the Closing Date.

Section 6.9 Debt. Borrower and its Subsidiaries have no Debt except Debt permitted pursuant to Section 8.1.

Section 6.10 Use of Proceeds; Margin Securities. Neither Borrower nor any Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations T, U or X of the Board of Governors of the Federal Reserve System), and no part of the proceeds of any extension of credit under this Agreement will be used for any purpose that violates Regulation T, U or X of the Board of Governors of the Federal Reserve System.

Section 6.11 ERISA Compliance. Borrower and each Subsidiary have complied with all applicable minimum funding requirements and all other material requirements of ERISA applicable to them, and there are no existing conditions that would give rise to liability thereunder. No



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Reportable Event (as defined in Section 4043 of ERISA) has occurred in connection with any employee benefit plan that might constitute grounds for the termination thereof by the Pension Benefit Guaranty Corporation or for the appointment by the appropriate United States District Court of a trustee to administer such plan.

Section 6.12 Taxes. To Borrower’s knowledge, Borrower and each Subsidiary have filed all (a) federal Tax returns and (b) material state, local and foreign Tax returns, in each case required to be filed by them, including all income, franchise, employment, property, and sales taxes. To Borrower’s knowledge, (y) Borrower and each Subsidiary have paid all of their material liabilities for federal taxes that are due and payable pursuant to such returns, except such taxes as are being contested in good faith by appropriate proceedings and for which Borrower or such Subsidiary has set aside on its books adequate reserves in accordance with GAAP and (z) Borrower and each Subsidiary have paid all of their liabilities for state, local and foreign Taxes that are shown to be due and payable pursuant to such returns, except such Taxes as are being contested in good faith by appropriate proceedings and for which Borrower or such Subsidiary has set aside on its books adequate reserves in accordance with GAAP and other than with respect to this clause (z) where the failure to do so would reasonably be expected to have a Material Adverse Effect. No material federal Tax lien has been filed and, to the knowledge of Borrower, no claim for the collection or assessment of federal Taxes is being asserted in writing by any Governmental Authority against Borrower or any Subsidiary with respect to any material unpaid federal Tax which is not being contested as permitted in this Agreement. No material state, local and foreign Tax lien has been filed and, to the knowledge of Borrower, no claim for the collection or assessment of state, local or foreign Taxes is being asserted in writing by any Governmental Authority against Borrower or any Subsidiary with respect to any material unpaid state, local or foreign Tax that could give rise to any such Tax lien which is not being, or will not be, contested as permitted in this Agreement.

Section 6.13 Disclosure. Since December 31, 2016, no event has occurred, and no fact or condition exists, which has had a Material Adverse Effect or which is likely to have a Material Adverse Effect.

Section 6.14 Subsidiaries. Borrower has no Subsidiaries other than as set forth on Schedule 6.14 (as may be updated in writing from time to time by Borrower to Agent). Borrower owns, directly or indirectly, the amount of ownership interests of each Subsidiary as stated on Schedule 6.14.

Section 6.15 Compliance with Laws. Neither Borrower nor any Subsidiary is in violation of any law, rule, regulation, order or decree of any Governmental Authority or arbitrator applicable to it or its properties, except where such violation, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

Section 6.16 Compliance with Agreements. Neither Borrower nor any Subsidiary is in violation of any document, agreement, contract or instrument to which it is a party or by which it or its properties are bound, except where such violation, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.



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Section 6.17 Environmental Matters. To Borrower’s knowledge, Borrower and each Subsidiary, and their respective properties, are in compliance with all applicable Environmental Laws and neither Borrower nor any Subsidiary is subject to any liability or obligation for remedial action thereunder, except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect. There is no pending or, to Borrower’s knowledge, threatened (in writing) investigation or inquiry by any Governmental Authority of Borrower or any Subsidiary, or any of their respective properties pertaining to any Hazardous Substance, except that would not reasonably be expected to result in a Material Adverse Effect. To Borrower’s knowledge, Borrower and each Subsidiary have obtained all permits, licenses, and authorizations which are required under and by all Environmental Laws, except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect. Furthermore, except in the ordinary course of business and in compliance with all applicable Environmental Laws or otherwise with respect to any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, (x) to Borrower’s knowledge, there are no Hazardous Substances located on or under any of the properties of Borrower or any Subsidiary and (y) to Borrower’s knowledge, neither Borrower nor any Subsidiary has caused or permitted any Hazardous Substance to be disposed of on or under or released from any of its properties.

Section 6.18 Solvency. Borrower and its Subsidiaries, on a consolidated basis, are not insolvent, Borrower’s and its Subsidiaries’ assets, on a consolidated basis, exceed their liabilities, and Borrower will not be rendered insolvent by the execution and performance of this Agreement and the other Loan Documents to which it is a party.

Section 6.19 Investment Company Act. Neither Borrower nor any Subsidiary is an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

Section 6.20 Proprietary Accounts. As of the date hereof, Schedule 6.20 contains a list of all of the Proprietary Accounts of Borrower and its Subsidiaries. The most recently delivered No Default Certificate, commencing with the No Default Certificate delivered for the fiscal quarter ending March 31, 2018, contains a list of all of the Proprietary Accounts of Borrower and its Subsidiaries as of the date of such No Default Certificate, and, as of the date of a No Default Certificate, neither Borrower nor any Subsidiary maintains any Proprietary Account which is not listed on such No Default Certificate.

Section 6.21 Sanctions. Neither Borrower nor any Subsidiary or, to the knowledge of Borrower, any director, officer, employee, agent, or Affiliate of Borrower or any Subsidiary is a Person that is, or is owned or controlled by Persons that are: (a) the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other sanctions authority having jurisdiction over Borrower or any Subsidiary (collectively, “Sanctions”), or (b) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions.

Section 6.22 Anti-Corruption. Neither Borrower nor any Subsidiary, nor, to the knowledge of Borrower, any director, officer, employee, agent, or Affiliate of Borrower or any Subsidiary has (a) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful



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expense relating to political activity, (b) made any direct or indirect unlawful payment to any government official or employee from corporate funds, (c) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977 or the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ of the United Kingdom or similar law of the European Union or any European Union Member State or similar law of a jurisdiction in which Borrower or any Subsidiary conduct their business and to which they are lawfully subject or (d) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment which is unlawful under any law of a jurisdiction in which Borrower or any Subsidiary conduct their business and to which they are lawfully subject.

Section 6.23 EEA Financial Institution. No Loan Party is an EEA Financial Institution

ARTICLE VII.
Affirmative Covenants

Borrower covenants and agrees that, as long as the Obligations or any part thereof are outstanding (other than indemnities and other contingent obligations not then due and payable and as to which no claim has been made at the time of determination) or any Lender has any commitment to advance funds hereunder or Issuing Bank has any obligation to issue any Letter of Credit hereunder or any Letter of Credit Liabilities exist (unless collateralized in accordance with Section 2.18), Borrower will perform and observe the covenants set forth below.

Section 7.1 Reporting Requirements. Borrower will deliver to Agent:

(a) Annual Financial Statements. As soon as available, and in any event within one hundred twenty (120) days after the end of each fiscal year of Borrower, beginning with the fiscal year ending December 31, 2017, a copy of the annual audited financial statements of Borrower and its Subsidiaries for such fiscal year containing, on a consolidated basis, Borrower’s balance sheet and related statements of income, stockholders’ equity and cash flows as at the end of such fiscal year and for the 12-month period then ended, in each case setting forth in comparative form the figures for the preceding fiscal year, all in reasonable detail, prepared in accordance with GAAP, and audited and certified by Ernst & Young LLP or other independent certified public accountants of recognized national standing or otherwise reasonably acceptable to Agent (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit) (provided that the requirements of this Section 7.1(a) with respect to the delivery of financial statements for any fiscal year shall be deemed satisfied by publicly filing Borrower’s Form 10-K for such fiscal year with the SEC, and such financial statements shall be deemed to have been delivered to Agent under this Section 7.1(a) on the date such Form 10-K has been posted on the SEC website accessible through ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇ or such successor webpage of the SEC thereto).

(b) Quarterly Financial Statements. As soon as available, and in any event within forty-five (45) days after the end of the first three fiscal quarters of each fiscal year of Borrower, commencing with the fiscal quarter ending March 31, 2018, a copy of the financial statements of Borrower and its Subsidiaries as at the end of such fiscal quarter and for the portion of the fiscal year then ended, containing, on a consolidated basis, Borrower’s balance sheet and related statements of income, stockholders’ equity and cash flows, in each case setting forth in comparative form the



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figures for the corresponding period of the preceding fiscal year, all in reasonable detail and certified by a Financial Officer to have been prepared in accordance with GAAP (subject to normal year-end adjustments and the absence of footnotes) and to fairly present in all material respects the financial condition and results of operations of Borrower and its Subsidiaries, on a consolidated basis, at the date and for the periods indicated therein (provided that the requirements of this Section 7.1(b) with respect to the delivery of financial statements for any fiscal quarter shall be deemed satisfied by publicly filing Borrower’s Form 10-Q for such fiscal quarter with the SEC, and such financial statements shall be deemed to have been delivered to Agent under this Section 7.1(b) on the date such Form 10-Q has been posted on the SEC website accessible through ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇.▇▇▇ or such successor webpage of the SEC thereto).

(c) No Default Certificate. (i) Together with the financial statements delivered pursuant to Section 7.1(a), a No Default Certificate as of the last day of the fiscal year covered by such financial statements, and (ii) together with the financial statements delivered pursuant to Section 7.1(b), a No Default Certificate as of the last day of the fiscal quarter covered by such financial statements, in each case executed by a Financial Officer and containing detailed calculations of the covenants contained in Sections 8.1(b) and (f) and Article IX.

(d) Notice of Litigation. Promptly after the commencement thereof, notice of all actions, suits and proceedings before any Governmental Authority against Borrower or any Subsidiary as to which there is a reasonable possibility of an adverse determination and that, if adversely determined, is likely to have a Material Adverse Effect.

(e) Judgments. Within five (5) Business Days of the rendering thereof, notice of any judgment against Borrower or any Subsidiary in an amount which is more than $5,000,000.00.

(f) Notice of Default. As soon as possible and in any event within five (5) Business Days after Borrower becomes aware thereof, a written notice setting forth the details of any Event of Default or Unmatured Event of Default and the action which Borrower has taken and proposes to take with respect thereto.

(g) Notice of Material Adverse Effect. As soon as possible, and in any event within five (5) Business Days after Borrower becomes aware thereof, notice of the occurrence of any event or the existence of any fact or condition which is reasonably likely to have a Material Adverse Effect.

(h) General Information. Promptly, such other information concerning Borrower or any Subsidiary as Agent or any Lender may from time to time reasonably request.

Section 7.2 Maintenance of Existence; Conduct of Business. Borrower will preserve and maintain, and will cause each Subsidiary (other than any Excluded Subsidiary) to preserve and maintain, (a) its legal existence and (b) all of its leases, privileges, licenses, permits, franchises, qualifications and rights that are necessary in the ordinary conduct of its business, except, in each case (other than with respect to Borrower’s legal existence), where the failure to do so would not reasonably be expected to have a Material Adverse Effect; provided that the foregoing shall not prohibit any merger, consolidation or other transaction permitted under Section 8.3.



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Section 7.3 Payment of Debt Service. Borrower will promptly pay the principal of, interest on and any other amount due on the Notes and the other Obligations in the amounts, on the dates and in the manner provided herein, in the Notes and each other document evidencing the Obligations.

Section 7.4 Maintenance of Properties. Borrower will maintain, and will cause each Subsidiary to maintain, all material assets and properties material to the conduct of the business of Borrower and its Subsidiaries, in good condition and repair, ordinary wear and tear excepted.

Section 7.5 Taxes and Claims. Borrower will pay or discharge, and will cause each Subsidiary to pay or discharge, at or before maturity or before becoming delinquent (a) all material income, franchise, federal, state, local, and foreign Taxes, and (b) all lawful claims for labor, material and supplies, which, if unpaid, might become a Lien upon any of its property; provided, however, that neither Borrower nor any Subsidiary shall be required to pay or discharge any such Tax or claim (a “Tax and Claim Charge”) if (i) the validity or amount thereof is being contested in good faith by appropriate proceedings diligently pursued, and (ii) either (A) (I) no Lien has been filed of record with respect to such Tax and Claim Charge, (II) no material assets of Borrower or such Subsidiary would be in any danger of sale, forfeiture or loss by reason of the contest of such Tax and Claim Charge, and (III) Borrower or such Subsidiary has set aside on its books adequate reserves against such Tax and Claim Charge in accordance with GAAP, or (B) if such Tax and Claim Charge arises with respect to a state, local or foreign Tax, such Tax and Claim Charge would not reasonably be expected to have a Material Adverse Effect.

Section 7.6 Insurance. Borrower will maintain, and will cause each Subsidiary to maintain, with financially sound and reputable insurance companies, insurance in such amounts and against such risks as are usually insured against by Persons engaged in similar businesses.

Section 7.7 Inspection. Borrower will permit, and will cause each Subsidiary to permit, representatives of Agent, upon reasonable prior notice, to visit and inspect from time to time the properties or assets of Borrower or such Subsidiary, to examine and make copies of the books and records of Borrower or such Subsidiary, and to discuss the business, operations, and financial condition of Borrower or such Subsidiary with its officers and independent certified public accountants, all at such reasonable times as may be requested and all at the expense of Agent (except that Borrower will bear the expenses of any such visitation or inspection made while an Event of Default has occurred and is continuing); provided that advance notice of any discussion with such independent certified public accountants shall be given to Borrower or the applicable Subsidiary and, so long as no Event of Default shall have occurred and be continuing, Borrower or such Subsidiary shall have the opportunity to be present at any such discussion.

Section 7.8 Keeping Books and Records. Borrower will maintain, and will cause each Subsidiary to maintain, proper books of record and account in which full, true and correct entries, in all material respects, are made of its financial and business transactions to the extent required by GAAP. For purposes of determining compliance with the financial covenants contained in this Agreement, any election by Borrower to measure an item of Debt using fair value (as permitted by Statement of Fair Value of Financial Assets and Liabilities, ASC 825 or any similar accounting



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standard) shall be disregarded and such determination shall be made as if such election had not been made.

Section 7.9 Compliance with Laws. Borrower will comply, and will cause each Subsidiary to comply, with all applicable laws, rules, regulations and orders of any court, Governmental Authority or arbitrator applicable to it or its properties, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

Section 7.10 Compliance with Agreements. Borrower will comply, and will cause each Subsidiary to comply, with all agreements, contracts, and instruments binding on it or affecting its properties or business, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

Section 7.11 Further Assurances. Borrower will execute and deliver, and will cause each Subsidiary to execute and deliver, such further instruments as may be reasonably requested by Agent to carry out the provisions and purposes of this Agreement and the other Loan Documents.

Section 7.12 ERISA. Borrower will comply, and will cause each Subsidiary to comply, with all material requirements of ERISA so as not to give rise to any material liability thereunder.

ARTICLE VIII.
Negative Covenants

Section 8.1 Debt. Borrower will not incur, create, assume or permit to exist, and will not permit any Subsidiary to incur, create, assume, or permit to exist, any Debt, except (a) Debt to Lenders pursuant to this Agreement and the other Loan Documents, (b) purchase money Debt and Capitalized Lease Obligations in an aggregate outstanding amount which does not exceed at any time the greater of (i) $20,000,000.00 and (ii) an amount equal to ten percent (10.0%) of EBITDA as calculated as of the end of the most recently ended fiscal quarter of Borrower for which financial statements are available for the four (4) fiscal quarters then ended, (c) accounts payable in the ordinary course of business so long as no account payable has been delinquent more than ninety (90) days, (d) Rate Management Transaction Obligations incurred solely in connection with hedging transactions, (e) Debt arising from the endorsement of instruments for collection in the ordinary course of business and (f) other unsecured Debt in an aggregate outstanding principal amount not to exceed at any time the greater of (i) $10,000,000.00 and (ii) an amount equal to five percent (5.0%) of EBITDA as calculated as of the end of the most recently ended fiscal quarter of Borrower for which financial statements are available for the four (4) fiscal quarters then ended.



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Section 8.2 Limitation on Liens. Borrower will not incur, create, assume or permit to exist, and will not permit any Subsidiary to incur, create, assume or permit to exist, any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except (a) Liens in favor of Agent as agent for Lenders, (b) Liens described on Schedule 8.2, (c) purchase money Liens and Liens related to Capitalized Lease Obligations securing Debt permitted by Section 8.1(b), which Liens cover only the assets financed or leased, as applicable, with the Debt permitted by Section 8.1(b), (d) encumbrances consisting of easements, zoning restrictions or other restrictions on the use of real property that do not (individually or in the aggregate) materially affect the value of the assets encumbered thereby or materially impair the ability of Borrower or any Subsidiary to use such assets in its business, and none of which is violated in any material respect by existing or proposed structures or land use, (e) Liens for Taxes which (i) are not delinquent or are payable without penalty, or (ii) (A) which are being contested in good faith by appropriate proceedings diligently conducted and (B) for which Borrower or such Subsidiary has set aside on its books adequate reserves against such Tax in accordance with GAAP, (f) Liens of mechanics, materialmen, repairmen, landlords, warehousemen, carriers or other similar statutory Liens securing obligations that are not yet overdue by more than 30 days (or are being contested in good faith, for which adequate reserves have been established) and are incurred in the ordinary course of business, (g) Liens consisting of pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other social security, old age pension or public liability obligations, and (h) additional Liens on assets of Borrower or any Subsidiary that are not otherwise permitted by this Section 8.2 that secure obligations up to an aggregate amount for all such Liens which does not exceed at any time the greater of (i) $10,000,000.00 and (ii) five percent (5.0%) of EBITDA as calculated as of the end of the most recently ended fiscal quarter of Borrower for which financial statements are available for the four (4) fiscal quarters then ended.

Section 8.3 Mergers, Acquisitions, Dissolutions and Disposition of Assets. Borrower will not, and will not permit any Subsidiary to:

(a) become a party to a merger, consolidation or other business combination (a “Merger”) or an Acquisition, except that:

(i) any Subsidiary may merge into Borrower if Borrower is the surviving entity,

(ii) any Subsidiary may merge into any Guarantor or any Foreign Subsidiary for which Agent has a pledge of ownership interests as required by Section 8.4(a)(ii),

(iii) any Subsidiary may merge with any other Person with such other Person being the surviving entity, so long as such Person becomes a Subsidiary as a result of such merger, and

(iv) Borrower or any Subsidiary may enter into an Acquisition if, at the time of such Acquisition,

(A) Borrower has an Interest Coverage Ratio of not less than 3.00 to 1.00 as of the last day of the fiscal quarter most recently ended for which financial statements are available, calculated on a pro forma basis assuming that such



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Acquisition and all other Acquisitions made since the last day of the fiscal quarter most recently ended for which financial statements are available had been made on the first day of the four consecutive fiscal quarter period then ended (but without any adjustment for projected cost savings or other synergies (except with the consent of Agent)),

(B) Borrower has a Leverage Ratio of not greater than 2.75 to 1.00 as of the last day of the fiscal quarter most recently ended for which financial statements are available, calculated on a pro forma basis assuming that such Acquisition and all other Acquisitions made since the last day of the fiscal quarter most recently ended for which financial statements are available had been made on the first day of the four consecutive fiscal quarter period then ended (but without any adjustment for projected cost savings or other synergies (except with the consent of Agent)),

(C) Borrower’s Net Working Capital as of the last day of the fiscal quarter most recently ended for which financial statements are available is equal to an amount not less than $25,000,000.00, calculated on a pro forma basis assuming that such Acquisition and all other Acquisitions made since the last day of the fiscal quarter most recently ended for which financial statements are available had been made on the first day of the four consecutive fiscal quarter period then ended, and

(D) no Event of Default exists at the time of such Acquisition or would occur as a result thereof;

provided that, if the total consideration paid (including cash, Debt (incurred or assumed) and equity issued) for such Acquisition equals or exceeds $25,000,000.00, Borrower shall deliver to Agent a written notice regarding such Acquisition, which written notice shall certify as to the foregoing conditions; provided, further, however, that Borrower and its Subsidiaries may enter into Acquisitions without having to satisfy the requirements of clauses (A) through (D) above if (I) the total consideration paid (including cash, Debt (incurred or assumed) and equity issued) for all such Acquisitions consummated during the then-current fiscal year of Borrower does not exceed $10,000,000.00 and (II) no Event of Default exists at the time of such Acquisition or would occur as a result thereof;

(b) dissolve, liquidate or dispose of substantially all of its assets, except any Subsidiary may (i) dispose of all or substantially all of its assets to Borrower or to another Subsidiary and (ii) dissolve, liquidate or dispose of substantially all of its assets if as of the date of such dissolution, liquidation or disposition (A) no Event of Default or Unmatured Event of Default exists or would occur as a result thereof, and (B) the aggregate fair market value of all dissolutions, liquidations and dispositions made pursuant to this subclause (b)(ii) and sales and dispositions made pursuant to subclause (d)(ii) below after the date of this Agreement does not exceed $25,000,000.00; or



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(d) sell or otherwise dispose of the ownership interests (corporate, partnership, membership or otherwise) in any Subsidiary to any Person, except Borrower or a Subsidiary may sell or otherwise dispose of all or any portion of its ownership interests in a Subsidiary to (i) Borrower or any other Subsidiary or (ii) any other Person if, as of the date of such sale or disposition (A) no Event of Default or Unmatured Event Default exists or would occur as a result thereof, (B) if such sale or disposition is of a portion of its ownership interests in a Subsidiary (and not all of its ownership interests therein), Borrower or any Subsidiary will continue to own, after giving effect to such sale or disposition, at least seventy percent (70%) of the ownership interests of such Subsidiary, and (C) the aggregate fair market value of all sales and dispositions made pursuant to this subclause (d)(ii) and dissolutions, liquidations and dispositions made pursuant to subclause (b)(ii) above after the date of this Agreement does not exceed $25,000,000.00; or

(e) enter into any agreement to enter into a transaction that would (upon the effectiveness of such transaction) be prohibited by any of clauses (a) through (d) of this Section without giving Agent prior notice thereof.

Section 8.4 Subsidiaries. (a) Borrower will not, and will not permit any Subsidiary to, create or acquire any Subsidiary (including in connection with any Acquisition pursuant to Section 8.3(a)), unless:

(i) if such Subsidiary is a Domestic Subsidiary (other than an Excluded Subsidiary), within ten (10) Business Days after the creation or Acquisition of such Subsidiary (unless such ten (10) Business Day time period is extended by Agent in its sole discretion):

(A) Borrower or such Subsidiary has notified Agent (and such notice shall be deemed to update Schedule 6.14) of the creation or the Acquisition of such Subsidiary (and, in the case of an Acquisition, has complied with Section 8.3(a)); and

(B) such Subsidiary has (I) executed and delivered to Agent a Joinder to Guaranty Agreement, and (II) delivered to Agent its Organizational Documents and evidence of its authority to enter into such Joinder to Guaranty Agreement (each Joinder to Guaranty Agreement executed by a Domestic Subsidiary pursuant to the preceding clause shall constitute a Loan Document); or

(ii) if such Subsidiary is a Foreign Subsidiary (other than an Excluded Subsidiary), within ten (10) Business Days after the creation or Acquisition of such Subsidiary (unless such ten (10) Business Day time period is extended by Agent in its sole discretion):



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(B) such Subsidiary shall be owned directly by Borrower or a Domestic Subsidiary; and

(C) Borrower or the direct Domestic Subsidiary-owner of such Subsidiary has (I) executed and delivered to Agent a Pledge Agreement granting Agent a Lien on sixty five percent (65%) of the ownership interests of such Foreign Subsidiary, (II) delivered to Agent (aa) such Foreign Subsidiary’s Organizational Documents and (bb) evidence of such pledging party’s authority to enter into such Pledge Agreement, and (III) delivered to Agent an opinion of legal counsel to such Foreign Subsidiary opinions covering such matters as may be reasonably requested by Agent.

(iii) such Subsidiary shall not be deemed to be included in the representations, warranties and covenants contained in this Agreement until the date of compliance with the terms and provisions of Section 8.4(a)(i) or (ii), as applicable.

(iv) Notwithstanding any provision herein to the contrary, Excluded Subsidiaries may not create or acquire any Subsidiaries (other than Excluded Subsidiaries).

(b) Upon Borrower's written request, Agent shall release a Guarantor hereunder (a “Requesting Guarantor”) from its obligations and liabilities arising in connection with the Guaranty Agreement if:

(i) no Event of Default or Unmatured Event of Default exists on the date of the release of such Requesting Guarantor from the Guaranty Agreement (the “Guarantor Release Date”); and

(ii) on the Guarantor Release Date, such Requesting Guarantor is either (A) dissolved in a transaction permitted pursuant to Section 8.3(b), or (B) all of its assets or all of its equity interests are acquired by a Person who is an unrelated third party to Borrower and its Subsidiaries in a transaction permitted pursuant to Section 8.3(d).

Section 8.5 Restricted Payments.

(a) Borrower will not declare or pay any Distribution (other than a Permitted Dividend) if (i) an Event of Default exists at the time of declaring or paying such Distribution or (ii) an Event of Default would occur immediately after giving effect to the declaration or payment of such Distribution.

(b) Borrower will not redeem, purchase, retire or otherwise acquire any of its capital stock (each, a “Stock Repurchase”) if (i) an Event of Default exists at the time of declaring or making such Stock Repurchase or (ii) an Event of Default would occur immediately after giving effect to the declaration or making of such Stock Repurchase; provided that the aggregate amount of all Restricted Stock Repurchases effected by Borrower during each calendar year shall not exceed $50,000,000.00. A Stock Repurchase shall be deemed to be a “Restricted Stock Repurchase” for purposes of this Section 8.5(b) if the Leverage Ratio is greater than 2.75 to 1.00 as of the last day



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of the fiscal quarter most recently ended for which financial statements are available, calculated on a pro forma basis assuming that such Stock Repurchase and all other Stock Repurchases made since the last day of the fiscal quarter most recently ended for which financial statements are available had been made on such day.

Section 8.6 Loans and Advances. Borrower will not make, and will not permit any Subsidiary to make, any advance, loan or extension of credit to any Person, except (a) advances, loans and extensions of credit not otherwise permitted by clause (b) below in an aggregate outstanding principal amount which does not exceed at any time the greater of (i) $20,000,000.00 and (ii) an amount equal to ten percent (10.0%) of EBITDA as calculated as of the end of the most recently ended fiscal quarter of Borrower for which financial statements are available for the four (4) fiscal quarters then ended, (b) advances, loans and extensions of credit among Borrower, Guarantors and the Bermuda Subsidiary and (c) advances, loans and extensions of credit from Borrower or any Guarantor to any Pledged Foreign Subsidiary in an aggregate outstanding principal amount which does not exceed at any time the greater of (i) $40,000,000.00 and (ii) an amount equal to twenty percent (20.0%) of EBITDA as calculated as of the end of the most recently ended fiscal quarter of Borrower for which financial statements are available for the four (4) fiscal quarters then ended, provided that the aggregate outstanding amount of all advances, loans and extensions of credit made pursuant to this Section 8.6(c), together with the aggregate amount of all investments made by Borrower and the Guarantors pursuant to Section 8.7(j) (valued at the time made) shall not exceed at any time the greater of (i) $40,000,000.00 and (ii) an amount equal to twenty percent (20.0%) of EBITDA as calculated as of the end of the most recently ended fiscal quarter of Borrower for which financial statements are available for the four (4) fiscal quarters then ended.

Section 8.7 Investments. Except for investments permitted pursuant to Section 8.3, Borrower will not make, and will not permit any Subsidiary to make, any capital contribution to or investment in, or purchase, or permit any Subsidiary to purchase, any stock, bonds, notes, debentures, or other securities of any Person, except:

(a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America or Canada (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America or Canada), in each case maturing within one year from the date of acquisition thereof;

(b) investments in commercial paper maturing within two hundred seventy (270) days from the date of acquisition thereof and having, at such date of acquisition, a rating of A2 or better by Standard and Poor’s Corporation (“S&P”), P2 or better by ▇▇▇▇▇’▇ Investors Service (“Moody’s”), or R1 “mid” or better by The Dominion Bond Rating Service;

(c) investments in certificates of deposit, banker’s acceptances and time deposits (including eurodollar deposits) maturing within one hundred eighty (180) days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any Lender or any domestic office of any commercial bank organized under the laws of the United States of America or Canada or any State or Province thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000.00;



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(d) fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above;

(e) money market funds (A) at least 95% of the assets of which constitute investments of the kind described in clauses (a) through (g) of this Section 8.7 or (B) that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) with (1) a short term credit rating of “P-1” or higher from Moody’s or “A-1” or higher from S&P or (2) a long term rating of “A2” or higher from Moody’s or “A” or higher from S&P and (iii) have portfolio assets of at least $1,000,000,000.00;

(f) investments in corporate debt securities (including loan participations) that (a) mature within twelve months from the date of acquisition, and (b) are rated BBB or better by S&P or Baa2 or better by Moody’s at the date of acquisition;

(g) investments in municipal securities or auction rate securities (in each case, other than those that are escrowed by direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof)) that are rated AA or better by S&P or Aa or better by Moody’s, provided that Borrower has the right to put such securities back to the issuer or seller thereof at least once every sixty (60) days;

(h) other investments in an amount not to exceed $10,000,000.00 in the aggregate at any one time by Foreign Subsidiaries in certificates of deposit, banker’s acceptances and time deposits (or other substantially similar investments) maturing within one hundred eighty (180) days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts (or other substantially similar deposit accounts) issued or offered by, any foreign commercial bank not organized under the laws of the United States of America or Canada or any state or province thereof;

(i) investments in Guarantors and the Bermuda Subsidiary;

(j) investments made by Borrower or any Guarantor in any Pledged Foreign Subsidiary in an aggregate outstanding amount (valued at the time made) which does not exceed at any time the greater of (i) $40,000,000.00 and (ii) an amount equal to twenty percent (20%) of EBITDA as calculated as of the end of the most recently ended fiscal quarter of Borrower for which financial statements are available for the four (4) fiscal quarters then ended, provided that the aggregate outstanding amount of all investments (valued at the time made) made by Borrower and the Guarantors pursuant to this Section 8.7(j), together with the aggregate outstanding amount of all advances, loans and extensions of credit made by Borrower and the Guarantors pursuant to Section 8.6(b), shall not at any time exceed the greater of (i) $40,000,000.00 and (ii) an amount equal to twenty percent (20.0%) of EBITDA as calculated as of the end of the most recently ended fiscal quarter of Borrower for which financial statements are available for the four (4) fiscal quarters then ended;



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(k) investments in any Person (other than a Guarantor, the Bermuda Subsidiary or a Pledged Foreign Subsidiary), provided such investments are only permitted under this subsection (k) if:

(i) Borrower and its Subsidiaries do not hold, collectively, a controlling interest in such Person,

(ii) the aggregate outstanding amount of all investments (valued at the time made) made under this subsection (k) does not exceed at any time the greater of (A) $20,000,000.00 and (B) an amount equal to ten percent (10.0%) of EBITDA as calculated as of the end of the most recently ended fiscal quarter of Borrower for which financial statements are available for the four (4) fiscal quarters then ended,

(iii) Borrower has an Interest Coverage Ratio of not less than 3.00 to 1.00 as of the last day of the fiscal quarter most recently ended for which financial statements are available,

(iv) Borrower has a Leverage Ratio of not greater than 2.75 to 1.00 as of the last day of the fiscal quarter most recently ended for which financial statements are available,

(v) Borrower’s Net Working Capital as of the last day of the fiscal quarter most recently ended for which financial statements are available is equal to an amount not less than $25,000,000.00, and

(vi) no Event of Default exists at the time of such investment or would occur as a result thereof; and

(l) other investments (valued at the time made) in an aggregate outstanding amount which does not exceed $10,000,000.00.

Section 8.8 Compliance with Environmental Laws. Borrower will not, and will not permit any Subsidiary to, (a) use (or permit any tenant to use) any of their respective properties or assets for the handling, processing, storage, transportation, or disposal of any Hazardous Substance, except in the ordinary course of business and in compliance with all Environmental Laws, (b) generate any Hazardous Substance in violation of any Environmental Law, (c) conduct any activity which is likely to cause a release or threatened release of any Hazardous Substance in violation of any Environmental Law, or (d) otherwise conduct any activity or use any of their respective properties or assets in any manner which is likely to violate any Environmental Law, except, in each case, as would not reasonably be expected to result in a Material Adverse Effect.

Section 8.9 Accounting. Borrower will not make, and will not permit any Subsidiary to make, any change in accounting treatment or reporting practices, except as permitted or required by GAAP. For purposes of determining compliance with the financial covenants contained in this Agreement, any election by Borrower to measure an item of Debt using fair value (as permitted by Statement of Financial Accounting Standards No. 159 or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made. Further,



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for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Debt of Borrower and its Subsidiaries shall be deemed to be carried at one hundred percent (100%) of the outstanding principal amount thereof, and the effects of Statement of Fair Value of Financial Assets and Liabilities, ASC 825 and Statement of Financial Accounting Standards ASC 470-20 on financial liabilities shall be disregarded.

Section 8.10 Change of Business. Borrower will not enter into, or permit any Subsidiary to enter into, any type of business which is materially different from the business of providing services or products in the area of human resources and business solutions which are designed to improve business performance, and activities reasonably ancillary thereto.

Section 8.11 Transactions with Affiliates. Borrower will not enter into, or permit to exist, and will not permit any Subsidiary to enter into or permit to exist, any transaction, arrangement or contract (including any lease or other rental agreement) with any of its Affiliates, unless such transaction, arrangement or contract is upon terms substantially as favorable to it as are obtainable from any Person who is not an Affiliate of Borrower or such Subsidiary (or, if in the good faith judgment of Borrower’s Board of Directors, no comparable transaction, arrangement or contract is available with which to compare any such transaction, arrangement or contract, such transaction arrangement or contract is otherwise fair to Borrower or the relevant Subsidiary from a financial point of view); provided that the foregoing shall not apply to:

(a) transactions between or among Borrower and Subsidiaries;

(b) transactions described on Schedule 8.11;

(c) the payment of reasonable and customary directors’ fees and other benefits to Persons who are not otherwise Affiliates of Borrower or any Subsidiary;

(d) any employment or severance or other employee compensation, arrangement or plan or any amendment thereto, entered into by Borrower or any of the Subsidiaries in the ordinary course of business, and payments, awards, grants or issuances of equity interests pursuant thereto; and

(e) provision of officers’ and directors’ indemnification and insurance in the ordinary course of business to the extent permitted by law.

Section 8.12 Rate Management Transactions. Borrower will not, and will not permit any Subsidiary to, enter into any Rate Management Transactions, except for Rate Management Transactions which are entered into solely for hedging purposes.

Section 8.13 Compliance with Government Regulations. Borrower will not, and will not permit any Subsidiary to, (a) be or become subject at any time to any law, regulation or list of any governmental agency (including, without limitation, the U.S. Office of Foreign Asset Control list) that prohibits or limits any Lender from making any advance or extension of credit to Borrower or from otherwise conducting business with Borrower, or (b) fail to provide documentary and other evidence of Borrower’s identity as may be requested by Agent or any Lender at any time to enable



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Agent or such Lender to verify Borrower’s identity or to comply with any applicable law or regulation, including, without limitation Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318.

Section 8.14 Capital Expenditures. Borrower will not, and will not permit any Subsidiary to, incur any Capital Expenditure, other than Capital Expenditures needed to maintain the normal business operations of Borrower and its Subsidiaries, if (a) an Event of Default exists at the time of incurring such Capital Expenditure or (b) an Event of Default would occur immediately after giving effect to such Capital Expenditure.

Section 8.15 Compliance with ERISA. Borrower will not maintain, and will not permit its Subsidiaries to maintain, any ERISA benefit plan which is subject to the minimum funding standards as set forth under IRC Section 412 or ERISA Section 302.

Section 8.16 Sanctions. Borrower will not knowingly, directly or indirectly, use the proceeds of the Revolving Advances or any Letter of Credit, or lend, contribute or otherwise knowingly make available such proceeds to any Subsidiary, joint venture partner or other Person, (a) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is, or whose government is, the subject of Sanctions, or (b) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Revolving Advances or Letters of Credit, whether as underwriter, advisor, investor, or otherwise).

Section 8.17 Anti-Corruption. Borrower will not knowingly use, or permit the use, of any proceeds of the Revolving Advances or Letters of Credit, directly or indirectly, to fund any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.

Section 8.18 Excluded Subsidiaries. (a) In the event the aggregate annual cash flow of all Excluded Subsidiaries exceeds $1,000,000.00 as of the end of any fiscal year of Borrower, Borrower shall, by notice to Agent, designate an Excluded Subsidiary (or Excluded Subsidiaries as necessary) that will cease to qualify as an “Excluded Subsidiary” on the date Agent receives Borrower’s annual audited financial statements required by Section 7.1(a) and such Subsidiary (or Subsidiaries) shall comply with Section 8.18(c)(i) or (ii) below, as applicable, so that after giving effect thereto, the aggregate annual cash flow of all remaining Excluded Subsidiaries as of the end of such fiscal year was equal to or less than $1,000,000.00.

(a)If an Excluded Subsidiary ceases to qualify as an “Excluded Subsidiary” (whether as a result of clause (a) above or for any other reason), such Subsidiary must comply with Section 8.18(c)(i) or (ii) below, as applicable. The date on which such Excluded Subsidiary ceases to qualify as an Excluded Subsidiary shall be herein referred to as the “Cessation Date”.

(b)(i) If such Subsidiary is a Domestic Subsidiary, within ten (10) Business Days after the Cessation Date (unless such ten (10) Business Day time period is extended by Agent in its



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sole discretion), such Subsidiary shall (A) execute and deliver to Agent a Joinder to Guaranty Agreement, and (B) deliver to Agent its Organizational Documents and evidence of its authority to enter into such Joinder to Guaranty Agreement (each Joinder to Guaranty Agreement executed by a Domestic Subsidiary pursuant to the preceding clause shall constitute a Loan Document); or

(i) if such Subsidiary is a Foreign Subsidiary, within ten (10) Business Days after the Cessation Date (unless such ten (10) Business Day time period is extended by Agent in its sole discretion), Borrower or the direct Domestic Subsidiary-owner of such Subsidiary shall (A) execute and deliver to Agent a Pledge Agreement granting Agent a Lien on sixty five percent (65%) of the ownership interests of such Foreign Subsidiary, (B) deliver to Agent (I) such Foreign Subsidiary’s Organizational Documents and (II) evidence of such pledging party’s authority to enter into such Pledge Agreement, and (C) deliver to Agent an opinion of legal counsel to such Foreign Subsidiary opinions covering such matters as may be reasonably requested by Agent.

ARTICLE IX.
Financial Covenants

Section 9.1 Interest Coverage Ratio. Borrower will at all times maintain an Interest Coverage Ratio of not less than 3.00 to 1.00. The Interest Coverage Ratio will be calculated and tested quarterly as of the last day of each fiscal quarter of Borrower, commencing with the fiscal quarter ending December 31, 2017, for the period of four consecutive fiscal quarters ended as of such date (a “rolling or trailing four quarter” basis). For the avoidance of doubt, the Interest Coverage Ratio in respect of the fiscal quarter ending December 31, 2017 shall be tested as if this Agreement were in effect on such date.

Section 9.2 Leverage Ratio. Borrower will at all times maintain a Leverage Ratio of not greater than 3.00 to 1.00. The Leverage Ratio shall be calculated and tested quarterly as of the last day of each quarter of each fiscal year of Borrower, commencing with the quarter ending December 31, 2017, and, for purposes of calculating the Leverage Ratio, EBITDA shall be calculated for the period of four consecutive fiscal quarters ended as of such date (a “rolling or trailing four quarter” basis). For the avoidance of doubt, the Leverage Ratio in respect of the fiscal quarter ending December 31, 2017 shall be tested as if this Agreement were in effect on such date.

ARTICLE X.
Default

Section 10.1 Events of Default. Each of the following shall be deemed an “Event of Default”:



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(a) Borrower shall fail to pay when due (i) any principal of the Obligations, or (ii) any interest on the Obligations or any other amount due under this Agreement or any Loan Document and, with respect to this clause (ii), such failure shall continue for a period of five (5) Business Days.

(b) Any representation or warranty made or deemed made by Borrower or any Subsidiary (or any of their respective officers) in any Loan Document or in any certificate, report, notice or financial statement furnished at any time in connection with this Agreement shall be false, misleading or erroneous in any material respect when made or deemed to have been made.

(c) Borrower or any Subsidiary (other than an Excluded Subsidiary) shall fail to perform, observe or comply with (i) any covenant, agreement or term contained in Section 7.6 or Section 8.3 of this Agreement; (ii) any covenant, agreement or term contained in Section 7.1 or Article IX of this Agreement and, with respect to this clause (ii), such failure shall continue for a period of fifteen (15) days; or (iii) any covenant, agreement or term contained in any other Section of this Agreement or any other Loan Document and, with respect to this clause (iii), such failure shall have continued for a period of thirty (30) days following the earlier to occur of (A) the date on which Agent gave Borrower notice of such failure or (B) the date on which Borrower first obtained knowledge of such failure.

(d) Borrower or any Subsidiary (other than an Excluded Subsidiary) shall commence a voluntary proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or a substantial part of its property or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it or shall make a general assignment for the benefit of creditors or shall generally fail to pay its debts as they become due or shall take any corporate action to authorize any of the foregoing.

(e) An involuntary proceeding shall be commenced against Borrower or any Subsidiary (other than an Excluded Subsidiary) seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official for it or a substantial part of its property, and such involuntary proceeding shall remain undismissed and unstayed for a period of sixty (60) days.

(f) Borrower or any Subsidiary shall fail to discharge, within a period of thirty (30) days after the commencement thereof, any attachment, sequestration, or similar proceeding or proceedings involving an aggregate amount in excess of $10,000,000.00 against any of its assets or properties.

(g) One or more judgments for the payment of money in an aggregate amount in excess of $10,000,000.00 (to the extent not covered by independent third party insurance as to which the insurer does not dispute coverage) shall be rendered against any Borrower or any Subsidiary and the same shall remain undischarged for a period of thirty (30) consecutive days during which



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execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of Borrower or any Guarantor to enforce any such judgment.

(h) Borrower or any Subsidiary shall fail to pay when due (after giving effect to any applicable grace periods) any principal of or interest on any Debt (other than the Obligations) with a principal amount in excess of $10,000,000.00, or the maturity of any such Debt shall have been accelerated, or any such Debt shall have been required to be prepaid prior to the stated maturity thereof, or any event shall have occurred that permits (or, with the giving of notice or lapse of time or both, would permit) any holder or holders of such Debt or any Person acting on behalf of such holder or holders to accelerate the maturity thereof or require any such prepayment.

(i) This Agreement, the Guaranty Agreement or any Note shall cease to be in full force and effect or shall be declared null and void or the validity or enforceability thereof shall be contested or challenged by Borrower or any Subsidiary, or Borrower or any Subsidiary shall deny that it has any further liability or obligation under any of the Loan Documents.

(j) Any Change of Control of Borrower shall occur.

(k) Borrower shall fail to comply with the provisions of Section 2.18 of this Agreement.

(l) The occurrence or existence of any default, Event of Default or other similar condition or event (however described) with respect to any Rate Management Transaction or Borrower or any Subsidiary shall fail to pay or perform any Rate Management Transaction Obligation, and, in either case, a period of fifteen (15) Business Days shall have passed.

Section 10.2 Remedies Upon Default. If any Event of Default shall occur and be continuing, Agent may, and, upon the direction of the Majority Lenders, shall, do any one or more of the following: (a) declare the outstanding principal of and accrued and unpaid interest on the Notes and the Obligations or any part thereof to be immediately due and payable, and the same shall thereupon become immediately due and payable, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by Borrower, (b) terminate the Combined Commitments without notice to Borrower, (c) foreclose or otherwise enforce any Lien granted to Agent to secure payment and performance of the Obligations, and (d) exercise any and all rights and remedies afforded by the laws of the State of Texas or any other jurisdiction by any of the Loan Documents, by equity or otherwise; provided, however, that upon the occurrence and during the continuation of an Event of Default under Section 10.1(d) or Section 10.1(e), the Combined Commitments shall automatically terminate, and the outstanding principal of and accrued and unpaid interest on the Notes and the other Obligations shall become immediately due and payable without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by Borrower.

Section 10.3 Cash Collateral. If any Event of Default shall occur and be continuing, Borrower shall, if requested by Agent, immediately deposit with and pledge to Agent, cash or cash



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equivalent investments in an amount equal to the Letter of Credit Liabilities as security for the Obligations.

Section 10.4 Performance by Agent. If Borrower shall fail to perform any covenant, duty, or agreement contained in any of the Loan Documents, Agent may perform or attempt to perform such covenant, duty, or agreement on behalf of Borrower. In such event, Borrower shall, at the request of Agent, promptly pay any amount expended by Agent in such performance or attempted performance to Agent, together with interest thereon at the Default Rate from the date of such expenditure until paid. Notwithstanding the foregoing, it is expressly agreed that neither Agent nor any Lender shall have any liability or responsibility for the performance of any obligation of Borrower under this Agreement or any other Loan Document.

Section 10.5 Application of Liquidation Proceeds. All monies received by Agent from the exercise of remedies under this Agreement or the Loan Documents securing or relating to the Notes or the Rate Management Transaction Obligations shall, unless otherwise required by applicable law, be applied as follows:

(a) First, to the payment of all expenses incurred by Agent in connection with the exercise of such rights and remedies, including, without limitation, all reasonable costs and expenses of collection, attorneys’ fees, court costs and foreclosure expenses.

(b) Second, to the payment of interest then accrued on the Notes.

(c) Third, to the payment pro rata of the principal balance then owing on the Notes, the cash collateralization of outstanding Letters of Credit and all payments under Rate Management Transaction Obligations.

(d) Fourth, to the payment of any other Obligations.

(e) Finally, any remaining surplus, to Borrower or to whomsoever shall be lawfully entitled thereto.

The provisions of this Section 10.5 shall govern and control over any conflicting provisions in this Agreement or any Loan Document, except that, to the extent Agent receives any amounts from any Guarantor that is not an Eligible Contract Participant, such amounts shall not be applied to any Obligations that are Excluded Swap Obligations.

ARTICLE XI.
Agent

Section 11.1 Appointment and Authorization. (a) Each Lender and Issuing Bank hereby irrevocably (subject to Section 11.9) appoints Amegy to act as Agent hereunder, and under the Loan Documents and authorizes Agent to take such action on its behalf under the provisions of this Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto. The person serving as Agent hereunder shall



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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 Agent and the term “Lender” or “Lenders” shall include the Person serving as Agent hereunder in its individual capacity.

(b) Issuing Bank shall act on behalf of Lenders with respect to any Letters of Credit issued by it and the documents associated therewith. Issuing Bank shall have all of the benefits and immunities (i) provided to Agent in this Article XI with respect to any acts taken or omissions suffered by Issuing Bank in connection with Letters of Credit issued by it or proposed to be issued by it and the applications and agreements for letters of credit pertaining to such Letters of Credit as fully as if the term “Agent”, as used in this Article XI, included Issuing Bank with respect to such acts or omissions and (ii) as additionally provided in this Agreement with respect to Issuing Bank.

Section 11.2 Delegation of Duties. Agent may execute any of its duties under this Agreement or any other Loan Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects with reasonable care.

Section 11.3 Liability of Agent. (a) Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Loan Document, Agent shall not have any duty or responsibility except those expressly set forth herein, nor shall Agent have or be deemed to have any fiduciary relationship with any Lender (regardless of whether an Event of Default or an Unmatured Event of Default exists), and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Documents or otherwise exist against Agent. Without limiting the foregoing, Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretional rights and powers expressly contemplated hereby or by the other Loan Documents that Agent is required to exercise as directed in writing by the Majority Lenders (or such other number or percentage of Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Agent to liability or that is contrary to any Loan Document or applicable law.

Section 11.4 Reliance by Agent. Agent shall be entitled to rely, and shall not incur any liability for relying, upon (a) any writing, resolution, notice, consent, certificate, affidavit, letter, facsimile, email or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent, or made by the proper Person or Persons, (b) any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and (c) advice and statements of legal counsel (including counsel to Borrower), independent accountants and other experts selected by Agent. Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Majority Lenders as it deems appropriate and, if it so requests, confirmation from Lenders of their obligation to indemnify Agent against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Agent shall in all cases be fully protected in acting, or in refraining from acting, under this



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Agreement or any other Loan Documents in accordance with a request or consent of the Majority Lenders and such request and any action taken or failure to act pursuant thereto shall be binding upon all Lenders. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or Issuing Bank, Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless Agent shall have received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit.

Section 11.5 Notice of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Event of Default or Unmatured Event of Default except with respect to defaults in the payment of principal, interest and fees required to be paid to Agent for the account of Lenders, unless Agent shall have received written notice from a Lender or Borrower referring to this Agreement, describing such Event of Default or Unmatured Event of Default and stating that such notice is a “notice of default”. Agent will notify Lenders of its receipt of any such notice. Agent shall take such action with respect to such Event of Default or Unmatured Event of Default as may be requested by the Majority Lenders in accordance with Article X; provided that unless and until Agent has received any such request, Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Event of Default or Unmatured Event of Default as it shall deem advisable or in the best interest of Lenders.

Section 11.6 Credit Decision. Each Lender acknowledges that Agent has not made any representation or warranty to it, and that no act by Agent hereafter taken, including any review of the affairs of Borrower and its Subsidiaries, shall be deemed to constitute any representation or warranty by Agent to any Lender. Each Lender represents to Agent that it has, independently and without reliance upon Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower and its Subsidiaries, and made its own decision to enter into this Agreement and to extend credit to Borrower hereunder. Each Lender also represents that it will, independently and without reliance upon Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, property, financial and other condition and creditworthiness of Borrower and its Subsidiaries. Except for notices, reports and other documents expressly herein required to be furnished to Lenders by Agent, Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial or other condition or creditworthiness of Borrower or its Subsidiaries which may come into the possession of Agent.

Section 11.7 Indemnification. Whether or not the transactions contemplated hereby are consummated, each Lender shall indemnify upon demand Agent and its directors, officers, employees and agents (to the extent not reimbursed by or on behalf of Borrower and without limiting the obligation of Borrower to do so) from and against any and all Claims in an amount based on such Lender’s Pro Rata Share of such Claims; provided that no Lender shall be liable for any payment to any such Person of any portion of the Claims to the extent such Claims arise from such Person’s



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gross negligence or willful misconduct. Without limitation of the foregoing, each Lender shall reimburse Agent upon demand for its Pro Rata Share of any costs or out-of-pocket expenses (including reasonable attorneys’ fees) incurred by Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Loan Document, or any document contemplated by or referred to herein, to the extent that Agent is not reimbursed for such expenses by or on behalf of Borrower or any Guarantor. The undertaking in this Section shall survive repayment of the Revolving Advances, cancellation of each Note, expiration or termination of the Letters of Credit, any foreclosure under, or modification, release or discharge of, any or all of the Loan Documents, termination of this Agreement and the resignation or replacement of Agent.

Section 11.8 Agent in Individual Capacity. Amegy and its Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with Borrower and its Subsidiaries and Affiliates as though Amegy were not Agent or Issuing Bank hereunder and without notice to or consent of Lenders. Lenders acknowledge that, pursuant to such activities, Amegy or its Affiliates may receive information regarding Borrower or its Affiliates (including information that may be subject to confidentiality obligations in favor of Borrower or such Affiliate) and acknowledge that Agent shall be under no obligation to provide such information to them.

Section 11.9 Successor Agent. Agent may resign as Agent upon thirty (30) days’ notice to Lenders and Borrower. If Agent resigns under this Agreement, Majority Lenders shall, with (so long as no Event of Default exists) the consent of Borrower (which shall not be unreasonably withheld or delayed), appoint from among Lenders a successor agent for Lenders. If no successor agent is appointed prior to the effective date of the resignation of Agent, Agent may appoint, after consulting with Lenders and Borrower, a successor agent from among Lenders. Upon the acceptance of its appointment as successor agent hereunder, such successor agent shall succeed to all the rights, powers and duties of the retiring Agent and the term “Agent” shall mean such successor agent, and the retiring Agent’s appointment, powers and duties as Agent shall be terminated. After any retiring Agent’s resignation hereunder as Agent, the provisions of this Article XI and Sections 12.1, 12.2 and 12.3 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent under this Agreement. If no successor agent has accepted appointment as Agent by the date which is thirty (30) days following a retiring Agent’s notice of resignation, the retiring Agent’s resignation shall nevertheless thereupon become effective and Lenders shall perform all of the duties of Agent hereunder until such time, if any, as the Majority Lenders appoint a successor agent as provided for above.

ARTICLE XII.
Miscellaneous

Section 12.1 Expenses. Borrower hereby agrees to pay Agent and Lenders, as applicable, on demand (a) all reasonable out-of-pocket costs and expenses incurred by Agent in connection with the preparation, negotiation, and execution of this Agreement and the other Loan Documents



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and any and all amendments, modifications, renewals, extensions, and supplements thereof and thereto, including, without limitation, the reasonable fees and expenses of Agent’s legal counsel, (b) all reasonable out‑of-pocket costs and expenses incurred by Agent and each Lender in connection with the enforcement of this Agreement or any other Loan Document, including, without limitation, the fees and expenses of each such Person’s legal counsel, and (c) all other reasonable out-of-pocket costs and expenses incurred by Agent in connection with this Agreement or any other Loan Document, including, without limitation, all costs, expenses, assessments, filing fees, and other charges levied by any Governmental Authority or otherwise payable in respect of this Agreement or any other Loan Document.

Section 12.2 INDEMNIFICATION. BORROWER HEREBY INDEMNIFIES AGENT, ISSUING BANK AND EACH LENDER AND EACH AFFILIATE THEREOF AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AND AGENTS (EACH SUCH PERSON BEING CALLED AN “INDEMNITEE”) FROM, AND HOLDS EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) (COLLECTIVELY, “CLAIMS”) TO WHICH ANY OF THEM MAY BECOME SUBJECT WHICH DIRECTLY OR INDIRECTLY ARISE FROM OR RELATE TO (a) THE NEGOTIATION, EXECUTION, DELIVERY, PERFORMANCE, ADMINISTRATION, OR ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS, (b) ANY OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS, (c) ANY BREACH BY BORROWER OF ANY REPRESENTATION, WARRANTY, COVENANT, OR OTHER AGREEMENT CONTAINED IN ANY OF THE LOAN DOCUMENTS, (d) THE PRESENCE, RELEASE, THREATENED RELEASE, DISPOSAL, REMOVAL, OR CLEANUP OF ANY HAZARDOUS SUBSTANCE LOCATED ON, ABOUT, WITHIN, OR AFFECTING ANY OF THE PROPERTIES OR ASSETS OF BORROWER OR ANY SUBSIDIARY, (e) ANY ACT OR OMISSION OF AGENT OR ANY LENDER BASED UPON ANY FAX OR ELECTRONIC TRANSMISSION, OR (f) ANY MATTER RELATED TO ANY LETTER OF CREDIT, INCLUDING, WITH RESPECT TO ALL OF THE ABOVE, ANY CLAIM WHICH ARISES AS A RESULT OF THE NEGLIGENCE OF AGENT OR ANY LENDER; PROVIDED, HOWEVER, THAT BORROWER’S INDEMNIFICATION OBLIGATIONS UNDER THIS SECTION 12.2 SHALL NOT APPLY TO THE EXTENT THAT ANY SUCH LOSSES, LIABILITIES, CLAIMS, DAMAGES OR EXPENSES WERE INCURRED BY REASON OF THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL CONDUCT OF SUCH INDEMNITEE. THIS SECTION 12.2 SHALL NOT APPLY WITH RESPECT TO TAXES OTHER THAN ANY TAXES THAT REPRESENT LOSSES, CLAIMS, DAMAGES, ETC. ARISING FROM ANY NON-TAX CLAIM.

Section 12.3 Limitation of Liability. No party hereto nor any affiliate, officer, director, employee, attorney, or agent of such Person shall have any liability with respect to, and each other party hereto hereby waives, releases, and agrees not to ▇▇▇ any of them upon, any claim for any special, indirect, incidental, or consequential damages suffered or incurred by the applicable party hereto in connection with, arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any of the transactions contemplated by this Agreement or any of the



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other Loan Documents. Each party hereto hereby waives, releases, and agrees not to ▇▇▇ any other party hereto or any of such Person’s Affiliates, officers, directors, employees, attorneys, or agents for punitive damages in respect of any claim in connection with, arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any of the transactions contemplated by this Agreement or any of the other Loan Documents.

Section 12.4 No Waiver; Cumulative Remedies. No failure on the part of Agent, Issuing Bank, or any Lender to exercise and no delay in exercising, and no course of dealing with respect to, any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power, or privilege under this Agreement preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies provided for in this Agreement and the other Loan Documents are cumulative and not exclusive of any rights and remedies provided by law.

Section 12.5 Successors and Assigns. This Agreement is binding upon and shall inure to the benefit of Agent, Issuing Bank, each Lender and Borrower and their respective successors and assigns, except that (a) Borrower may not assign or transfer any of its rights or obligations under this Agreement without prior written consent of Agent and Lenders and (b) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with Section 12.19 or as required under Section 2.21.

Section 12.6 Survival. All representations and warranties made in this Agreement or any other Loan Document or in any document, statement, or certificate furnished in connection with this Agreement shall survive the execution and delivery of this Agreement and the other Loan Documents, and no investigation by Agent, Issuing Bank or any Lender or any closing shall affect the representations and warranties or the right of Agent, Issuing Bank or any Lender to rely upon them. Without prejudice to the survival of any other obligation of Borrower hereunder, the obligations of Borrower under Sections 12.1 and 12.2 shall survive repayment of the Notes and termination of the Combined Commitments and the Letters of Credit.

Section 12.7 Amendments. No amendment, modification or waiver of, or consent with respect to, any provision of this Agreement or any Note shall in any event be effective unless the same shall be in writing and signed and delivered by the Majority Lenders and Borrower, and then any such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No amendment, modification, waiver or consent shall change the Commitment of any Lender without the consent of such Lender. No amendment, modification, waiver or consent shall (i) increase the Combined Commitments (other than pursuant to Section 2.8), (ii) extend the date for payment of any principal of or interest on the Revolving Advances or any fees payable hereunder, (iii) extend any Lender’s Commitment, (iv) reduce the principal amount of any Revolving Advance, (v) release any guaranty (except as permitted in Section 8.4(b)), or (vi) reduce the aggregate percentage of holders of the Combined Commitments required to effect an amendment, modification, waiver or consent without, in each case, the consent of all Lenders. If any amendment, modification, waiver or consent relates only to the Revolving Advances, the applicable percentage for consent shall be calculated only from the holders of the Combined Commitments, provided that if either the Combined Commitments are fully funded or the



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Termination Date has occurred, then such applicable percentage for consent shall be calculated from the holders of the outstanding Revolving Advances and the Letter of Credit Liabilities. No amendment, modification, waiver or consent shall reduce any principal of or interest on the Revolving Advances or any fees payable hereunder without the consent of each Lender affected thereby. No provision of Article XI or any other provision of this Agreement affecting Agent in its capacity as such shall be amended, modified or waived without the consent of Agent. No provision of this Agreement relating to the rights or duties of Issuing Bank in its capacity as such shall be amended, modified or waived without the consent of Issuing Bank. No provision of this Agreement relating to the rights or duties of the Swing Lender in its capacity as such shall be amended, modified or waived without the consent of the Swing Lender.

Section 12.8 Maximum Interest Rate. No provision of this Agreement or of any other Loan Documents shall require the payment or the collection of interest (including all fees, charges and other amounts which are treated as interest) in excess of the Maximum Rate. If any excess of interest in such respect is hereby provided for, or shall be adjudicated to be so provided, in any other Loan Documents or otherwise in connection with this loan transaction, the provisions of this Section shall govern and prevail and neither Borrower nor the sureties, guarantors, successors, or assigns of Borrower shall be obligated to pay the excess amount of such interest or any other excess sum paid for the use, forbearance, or detention of sums loaned pursuant hereto. In the event Agent, Issuing Bank or any Lender ever receives, collects, or applies as interest any such sum, such amount which would be in excess of the maximum amount permitted by applicable law shall be applied as a payment and reduction of the principal of the indebtedness evidenced by the Notes; and, if the principal of the Notes has been paid in full, any remaining excess shall forthwith be paid to Borrower. In determining whether or not the interest paid or payable exceeds the Maximum Rate, Borrower and Agent, Issuing Bank and Lenders shall, to the extent permitted by applicable law, (a) characterize any non-principal payment as an expense, fee, or premium rather than as interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the entire contemplated term of the indebtedness evidenced by the Notes so that interest for the entire term does not exceed the Maximum Rate.

Section 12.9 Notices.

Section 12.10 Platform.

(a) Borrower agrees that Agent may, but shall not be obligated to, make the Communications (as defined below) available to Lenders by posting the Communications on Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system (the “Platform”).

(b) The Platform is provided “as is” and “as available”. Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the 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 Party in connection with the Communications or the Platform. In no event shall Agent or any agent or



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Affiliate thereof (collectively, the “Agent Parties”) have any liability to Borrower or the other Loan Parties, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of any Loan Partyʼs or Agentʼs transmission of communications through the Platform. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed to Agent or any Lender by means of electronic communications pursuant to this Section, including through the Platform.

Section 12.11 Applicable Law; Venue; Service of Process. This Agreement and the other Loan Documents shall be governed by and construed in accordance with the laws of the State of Texas and the applicable laws of the United States of America. This Agreement has been entered into in ▇▇▇▇▇▇ County, Texas and it shall be performable for all purposes in ▇▇▇▇▇▇ County, Texas. Any action or proceeding against Borrower under or in connection with any of the Loan Documents may be brought in any state or federal court in ▇▇▇▇▇▇ County, Texas, and each party hereto hereby irrevocably submits to the nonexclusive jurisdiction of such courts and waives any objection it may now or hereafter have as to the venue of any such action or proceeding brought in any such court or that any such court is an inconvenient forum. Each party hereto agrees that service of process upon it may be made by certified or registered mail, return receipt requested, at its office specified in this Agreement. Nothing herein or in any of the other Loan Documents shall affect the right of Agent to serve process in any other manner permitted by law or shall limit the right of Agent to bring any action or proceeding against Borrower or with respect to any of its property in courts in other jurisdictions. Any action or proceeding by Borrower against Agent, Issuing Bank or any Lender shall be brought only in a court located in ▇▇▇▇▇▇ County, Texas.

Section 12.12 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile transmission or other electronic means shall be effective as delivery of a manually executed counterpart hereof.

Section 12.13 Severability. Any provision of this Agreement or any other Loan Document held by a court of competent jurisdiction to be invalid, illegal or unenforceable shall not impair or invalidate the remaining provisions hereof or thereof and the effect of such invalidity, illegality or unenforceability shall be confined to the provision held to be invalid, illegal or unenforceable.

Section 12.14 Headings. The headings, captions, and arrangements used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.

Section 12.15 On-line Banking. From time to time, Agent may (but shall not be required to) permit loan payments to be made through its online banking website. Agent may impose and change limitations on making online loan payments, such as minimum or maximum payment amounts, the types of accounts from which loan payments may be made, and the types of payments



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that may be made online (i.e., ordinary installment payments, principal-only payments, or other types of payments). Whether online payments are permitted, and Agentʼs applicable terms and restrictions if such payments are permitted, will be reflected in the features available online when a user logs into the online banking website.

Section 12.16 Electronic Delivery of Documents. (a) The provisions of this Section shall be applicable in the event that Borrower delivers any (i) financial statements of Borrower or any other Person (the “Financial Statements”), or (ii) No Default Certificates (the Financial Statements, No Default Certificates and any other documents or information regarding Borrower or any other Person delivered to Agent pursuant to this Agreement, collectively, the “Financial Information”) in electronic form (by “email”).

(b) The Financial Information delivered in electronic form shall, for all purposes, be the same as if, and shall have the same validity, force and effect as if, such Financial Information had been delivered in paper or other tangible form. Each item of Financial Information delivered in electronic form shall be deemed to have been originally signed by Borrower for all purposes (including all purposes and interpretations of federal and state law), whether or not there is an electronic name or signature of Borrower thereon, and Borrower waives any right it may have to claim that the electronic documents are not original documents or valid documents.

(c) Borrower shall deliver Financial Information to Agent in, and only in, a format that Agent may both retain in its own records (i.e. save as a file on its own system) and print. In the event that at any time, under the electronic format then currently used by Agent, Agent is unable to save or print Financial Information delivered in electronic form, Borrower shall no longer be permitted to deliver Financial Information in electronic form.

(d) This Section constitutes an agreement between the parties to conduct transactions by electronic means pursuant the Texas Uniform Electronic Transactions Act, Chapter 43, Texas Business & Commerce Code (the “Act”), and the provisions of the Act shall be applicable to the delivery of Financial Information by Borrower to Agent in electronic form.

Section 12.17 Non-Application of Chapter 346 of Texas Finance Code. The provisions of Chapter 346 of the Texas Finance Code are specifically declared by the parties hereto not to be applicable to this Agreement or any of the other Loan Documents or to the transactions contemplated hereby.

Section 12.18 Consent to Participations. Any Lender shall have the right at any time and from time to time to sell or transfer one or more participation interests in the Notes and the indebtedness evidenced thereby to one or more purchasers (“Participants”), whether related or unrelated to such Lender, but such Person shall not be a “Lender” hereunder. Subject to Section 12.24, any Lender may provide to any one or more Participants or potential Participants any information, financial statements, data or knowledge such Lender may have about Borrower or about any other matter relating to the Obligations. Borrower further waives any and all notices of sale of participation interests and notices of repurchases of participation interests. Borrower agrees



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that the owners of any participation interests will be considered as the absolute owners of their interests in the Obligations and will have all the rights granted under the participation agreements or other agreements governing the sale of their participation interests, but such Participants shall not have any direct rights under this Agreement or the Loan Documents. Borrower waives all rights of offset or counterclaim that it may now or later have against Agent or against any Participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. A Lender’s Participant Register shall contain the following information as of each date: (1) the name and address of each Participant, (2) the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents, and (3) the name of Borrower and information that uniquely identifies this Agreement, and no Lender shall be obligated to maintain any other information on the Participant Register. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.

Section 12.19 Assignments. Any Lender may, with the prior written consent of Agent and (so long as no Event of Default or Unmatured Event of Default exists) Borrower, which consents shall not be unreasonably delayed or withheld (it being understood that Borrower (i) may withhold its consent to any such assignment if such assignment would result in a “Termination Event” or an “Event of Default” or a similar event under any agreement relating to any Rate Management Transaction to which the assignor or any Affiliate of the assignor is a party and such “Termination Event,” “Event of Default” or similar event would result in an Event of Default under Section 10.1(h) or 10.1(l) of this Agreement, and (ii) shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to Agent within five (5) Business Days after having received written notice thereof from Agent) and, in any event, shall not be required for an assignment by any Lender to one of its Affiliates, at any time assign and delegate to an Eligible Assignee all or any fraction of such Lender’s Revolving Advances and Commitment, in a minimum aggregate amount not less than the lesser of (a) the amount of the assigning Lender’s Commitments, and (b) $2,000,000.00; provided that Borrower and Agent shall be entitled to continue to deal solely and directly with such Lender in connection with the interests so assigned and delegated to an Eligible Assignee until the date when all of the following conditions shall have been met:

(a) the assigning Lender and the Eligible Assignee shall have executed and delivered to Borrower and Agent an Assignment and Acceptance, together with any documents required to be delivered thereunder, which Assignment and Acceptance shall have been accepted by Agent, and



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(b) except in the case of an assignment by a Lender to one of its Affiliates, the assigning Lender or the Eligible Assignee shall have paid Agent a processing fee of $3,500.00.

From and after the date on which the conditions described above have been met, (x) such Eligible Assignee shall be deemed automatically to have become a party hereto and, to the extent that rights and obligations hereunder have been assigned and delegated to such Eligible Assignee pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender hereunder and (y) the assigning Lender, to the extent that rights and obligations hereunder have been assigned and delegated by it pursuant to such Assignment and Acceptance, shall be released from its obligations hereunder. Within five (5) Business Days after effectiveness of any assignment and delegation and upon request by Agent, Borrower shall execute and deliver to Agent (for delivery to the Eligible Assignee and the assigning Lender, as applicable) a new Note, as applicable, in the principal amount of the Eligible Assignee’s Pro Rata Share of the Combined Commitments, and, if the assigning Lender has retained a Commitment, a replacement Note in the principal amount of the Pro Rata Share of the Combined Commitments, retained by the assigning Lender (each such Note to be in exchange for, but not in payment of, the portion of the predecessor Note not being assigned). At such time, the assigning Lender shall deliver to Borrower the Note assigned by such Lender. Accrued interest and accrued fees shall be paid at the same time or times provided in the predecessor Note and in this Agreement. Subject to Section 2.21, any attempted assignment and delegation not made in accordance with this Section 12.19 shall be null and void.

Notwithstanding the foregoing provisions of this Section 12.19 or any other provision of this Agreement, any Lender may at any time assign all or any portion of its Commitment and its Notes to a Federal Reserve Bank (but no such assignment shall release any Lender from any of its obligations hereunder).

Agent, acting solely for this purpose as a non-fiduciary agent of Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The Register shall contain the following information as of each date: (1) the names and addresses of Lenders, (2) the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender, and (3) the name of Borrower and information that uniquely identifies this Agreement, and Agent shall not be obligated to maintain any other information on the Register. The entries in the Register shall be conclusive absent manifest error, and Borrower, Agent and Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. Notwithstanding anything to the contrary herein, no assignment shall be effective until recorded in the Register.

Section 12.20 USA Patriot Act. Each Lender hereby notifies Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies Borrower, which



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information includes the name and address of Borrower and other information that will allow such Lender to identify Borrower in accordance with the Act.

Section 12.21 Foreign Lender Reporting Requirements. If any Lender which is not a Person organized and existing under the laws of the United States of America or a state thereof (a “Non-US Person”) becomes a party to this Agreement, such Lender will deliver to Borrower and Agent such documents and forms related to such status as a Non-US Person as Borrower or Agent may require.

Section 12.22 Location of Document Execution. Borrower hereby represents and warrants to Agent and Lenders that this Agreement and all Loan Documents executed in connection herewith have not been executed in the state of Florida.

Section 12.23 Document Imaging. Agent and Lenders shall be entitled, in their sole discretion, to image or make copies of all or any selection of the agreements, instruments, documents, and items and records governing, arising from or relating to any of Borrower's loans, including, without limitation, this Agreement and the other Loan Documents, and Agent and Lenders may destroy or archive the paper originals. The parties hereto (a) waive any right to insist or require that Agent or any Lender produce paper originals, (b) agree that such images shall be accorded the same force and effect as the paper originals, (c) agree that Agent and Lenders are entitled to use such images in lieu of destroyed or archived originals for any purpose, including as admissible evidence in any demand, presentment or other proceedings, and (d) further agree that any executed facsimile (faxed), scanned, or other imaged copy of this document or any Loan Document shall be deemed to be of the same force and effect as the original manually executed document.

Section 12.24 Confidentiality. Agent, Issuing Bank and each Lender agree (on behalf of itself and each of its Affiliates, directors, officers and employees) to maintain the confidentiality of all non-public information supplied to it by or on behalf of Borrower or any Subsidiaries pursuant to this Agreement or any other Loan Document (“Confidential Information”), provided that nothing herein shall limit the disclosure of any Confidential Information (a) to the extent required by statute, rule, regulation or judicial process, (b) to counsel or any other third party professional consultants or advisors for any Lender, Issuing Bank or Agent, provided that such consultant or advisor has agreed to hold such Confidential Information confidential, (c) to regulatory bodies (including the National Association of Insurance Commissioners or any similar organization, or any nationally recognized rating agency that requires access to information about Agent’s, Issuing Bank’s or any Lender’s investment portfolio), auditors or accountants of Agent, Issuing Bank or any Lender, (d) to Agent, Issuing Bank or any other Lender or any Affiliate thereof, (e) in connection with any litigation relating to the transactions contemplated by this Agreement or any other Loan Document to which any one or more of Agent, Issuing Bank or any Lender is a party, or (f) to any assignee or participant (or prospective assignee or participant) so long as such assignee or participant (or prospective assignee or participant) agrees in writing to be bound by the provisions of this Section 12.24. Confidential Information does not include information that (i) was publicly known prior to the time of disclosure by Borrower or any Subsidiary, (ii) after disclosure by Borrower or any Subsidiary to any Lender, Issuing Bank or Agent, becomes publicly known through no act or omission by any Lender, Issuing Bank or Agent or by any Person acting on behalf of any Lender,



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Issuing Bank or Agent or (iii) otherwise becomes known to any Lender, Issuing Bank or Agent other than through disclosure by Borrower, any Subsidiary or any other party known by such Lender, Issuing Bank or Agent to be subject to a confidentiality agreement.

Section 12.25 Dispute Resolution. This Section contains a jury waiver, arbitration clause and a class action waiver. This Section should be carefully read.

This dispute resolution provision shall supersede and replace any prior “Jury Waiver”, “Judicial Reference”, “Class Action Waiver”, “Arbitration”, “Dispute Resolution” or similar alternative dispute agreement or provision between or among the parties.

(a) JURY TRIAL WAIVER; CLASS ACTION WAIVER. AS PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES THEIR RESPECTIVE RIGHTS TO A TRIAL BEFORE A JURY IN CONNECTION WITH ANY DISPUTE (AS “DISPUTE” IS HEREINAFTER DEFINED), AND DISPUTES SHALL BE RESOLVED BY A JUDGE SITTING WITHOUT A JURY. IF A COURT DETERMINES THAT THIS PROVISION IS NOT ENFORCEABLE FOR ANY REASON AND AT ANY TIME PRIOR TO TRIAL OF THE DISPUTE, BUT NOT LATER THAN THIRTY (30) DAYS AFTER ENTRY OF THE ORDER DETERMINING THIS PROVISION IS UNENFORCEABLE, ANY PARTY SHALL BE ENTITLED TO MOVE THE COURT FOR AN ORDER COMPELLING ARBITRATION AND STAYING OR DISMISSING SUCH LITIGATION PENDING ARBITRATION (“ARBITRATION ORDER”). IF PERMITTED BY APPLICABLE LAW, EACH PARTY ALSO WAIVES THE RIGHT TO LITIGATE IN COURT OR ARBITRATE ANY CLAIM OR DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL.

(b) ARBITRATION. If a claim, dispute, or controversy arises between any of the parties hereto with respect to this Agreement or any other Loan Document (all of the foregoing, a “Dispute”), and only if a jury trial waiver is not permitted by applicable law or ruling by a court, any party may require that the Dispute be resolved by binding arbitration before a single arbitrator. By agreeing to arbitrate a Dispute, each party gives up any right such party may have to a jury trial, as well as other rights such party would have in court that are not available or are more limited in arbitration, such as the rights to discovery and to appeal.

Arbitration shall be commenced by filing a petition with, and in accordance with the applicable arbitration rules of, JAMS or National Arbitration Forum (“Administrator”) as selected by the initiating party. If the parties agree, arbitration may be commenced by appointment of a licensed attorney who is selected by the parties and who agrees to conduct the arbitration without an Administrator. Disputes include matters (i) relating to a deposit account, application for or denial of credit, enforcement of any of the obligations either party has to the other party, compliance with applicable laws and/or regulations, performance or services provided under any agreement by any party, (ii) based on or arising from an alleged tort, or (iii) involving either partyʼs employees, agents, affiliates, or assigns. However, Disputes do not include the validity, enforceability, meaning, or scope of this arbitration provision and such matters may be determined only by a court. If a third



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party is a party to a Dispute, each party consents to including the third party in the arbitration proceeding for resolving the Dispute with the third party. Venue for the arbitration proceeding shall be at a location determined by mutual agreement of the parties or, if no agreement, in the city and state where lender or the bank is headquartered.

If a court orders arbitration of a Dispute, the party to the Dispute that did not seek the Arbitration Order shall commence arbitration. The party that sought the Arbitration Order may commence arbitration, but shall have no obligation to do so, and shall not in any way be adversely prejudiced by initiating or participating in litigation or electing not to commence arbitration. The arbitrator shall (i) hear and rule on appropriate dispositive motions for judgment on the pleadings, for failure to state a claim, or for full or partial summary judgment; (ii) render a decision and any award applying applicable law; (iii) give effect to any limitations period in determining any Dispute or defense; (iv) enforce the doctrines of compulsory counterclaim, res judicata, and collateral estoppel, if applicable; (v) with regard to motions and the arbitration hearing, apply rules of evidence governing civil cases; and (vi) apply the law of the state specified in the agreement giving rise to the Dispute. Filing of a petition for arbitration shall not prevent any party from (i) seeking and obtaining from a court of competent jurisdiction (notwithstanding ongoing arbitration) provisional or ancillary remedies including but not limited to injunctive relief, property preservation orders, foreclosure, eviction, attachment, replevin, garnishment, and/or the appointment of a receiver, (ii) pursuing non-judicial foreclosure, or (iii) availing itself of any self-help remedies such as setoff and repossession. The exercise of such rights shall not constitute a waiver of the right to submit any Dispute to arbitration.

Judgment upon an arbitration award may be entered in any court having jurisdiction, except that, if the arbitration award exceeds $4,000,000.00, any party shall be entitled to a de novo appeal of the award before a panel of three arbitrators. To allow for such appeal, if the award (including Administrator, arbitrator, and attorneyʼs fees and costs) exceeds $4,000,000.00, the arbitrator will issue a written, reasoned decision supporting the award, including a statement of authority and its application to the Dispute. A request for de novo appeal must be filed with the arbitrator within thirty (30) days following the date of the arbitration award; if such a request is not made within that time period, the arbitration decision shall become final and binding. On appeal, the arbitrators shall review the award de novo, meaning that they shall reach their own findings of fact and conclusions of law rather than deferring in any manner to the original arbitrator. Appeal of an arbitration award shall be pursuant to the rules of the Administrator or, if the Administrator has no such rules, then the JAMS arbitration appellate rules shall apply.

Arbitration under this provision concerns a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. This arbitration provision shall survive any termination, amendment, or expiration of this Agreement. If the terms of this provision vary from the Administratorʼs rules, this arbitration provision shall control.

(c) RELIANCE. Each party (i) certifies that no one has represented to such party that the other parties would not seek to enforce jury and class action waivers in the event of suit, and (ii) acknowledges that it and the other parties have been induced to enter into this Agreement by, among other things, the mutual waivers, agreements, and certifications in this Section.



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Section 12.26 ENTIRE AGREEMENT. THIS AGREEMENT, THE NOTES, AND THE OTHER LOAN DOCUMENTS REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.

BORROWER:

INSPERITY, INC.

By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇

▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇

▇▇. Vice President of Finance, Chief

Financial Officer and Treasurer

Address for Notices:

Legal Notices:

Insperity, Inc.

▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇

Attention: General Counsel

Fax: (▇▇▇) ▇▇▇-▇▇▇▇

Other Notices:

Insperity, Inc.

▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇

▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇

Email:

Fax: (▇▇▇) ▇▇▇-▇▇▇▇



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AGENT:

ZB, N.A. dba AMEGY BANK

By: /s/ ▇▇▇ ▇▇▇▇▇▇▇

▇▇▇ ▇▇▇▇▇▇▇

Senior Vice President

Address for Notices:

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▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇

Attention: ▇▇▇ ▇▇▇▇▇▇▇

Email:



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LENDERS:

ZB, N.A. dba AMEGY BANK

By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇

▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇

Senior Vice President

Address for Notices:

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▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇

Email:



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BANK OF AMERICA, N.A.

By: /s/ ▇▇▇▇ ▇▇▇▇

Name: ▇▇▇▇ ▇▇▇▇

Title: Senior Vice President

Address for Notices:

▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇

TX4-213-08-02

Attention: ▇▇▇▇▇ ▇▇▇▇

Email:



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WOODFOREST NATIONAL BANK

By: /s/ ▇▇▇▇ ▇▇▇▇▇

Name: ▇▇▇▇ ▇▇▇▇▇

Title: Senior Vice President

Address for Notices:

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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇ ▇▇▇▇▇

Email:



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BRANCH BANKING & TRUST COMPANY

By: /s/ ▇▇▇▇ ▇▇▇▇▇▇

Name: ▇▇▇▇ ▇▇▇▇▇▇

Title: Senior Vice President

Address for Notices:

Three ▇▇▇▇▇ Center

▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇

▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇ ▇▇▇▇▇▇

Email:



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▇▇▇▇▇ FARGO BANK, N.A.

By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇

Name: H. ▇▇▇▇▇ ▇▇▇▇▇

Title: Senior Vice President

Address for Notices:

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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇

Attention: ▇▇▇▇▇ ▇▇▇▇▇

Email:



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AMENDED AND RESTATED CREDIT AGREEMENT Dated as of February 6, 2018 between INSPERITY, INC., as Borrower, THE LENDERS PARTIES HERETO, ZB, N.A. dba AMEGY BANK, as Agent, BANK OF AMERICA, N.A. and WELLS FARGO BANK, N.A., as Co- Syndication Agents, and...

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