LOAN AND SECURITY AGREEMENT Dated as of March 25, 2022 among GREEN PLAINS INC., as a Guarantor, GREEN PLAINS FINANCE COMPANY LLC, GREEN PLAINS GRAIN COMPANY LLC, and GREEN PLAINS TRADE GROUP LLC as Borrowers, ING CAPITAL LLC, as Agent, and THE...



Section 1

DEFINITIONS AND ACCOUNTING TERMS

Certain Defined Terms

UCC Defined Terms

Accounting Terms

Other Definitional Provisions

Divisions

Rates

Section 2

LOANS AND COLLATERAL

Loans

Interest

Fees

Prepayments

Term of this Agreement

Termination or Reduction of Commitments

Payments Generally

Yield Protection

Taxes

Determining Rates; Illegality

Mitigation Obligations; Replacement of Lenders

Compensation

Benchmark Replacement Setting

Margin Adjustment and Unused Commitment Fee Adjustment

Uncommitted Accordion

Section 3

CONDITIONS TO LOANS

Conditions to Initial Loans and Lender Letters of Credit

Additional Conditions to All Loans and Lender Letters of Credit

Section 4

REPRESENTATIONS AND WARRANTIES.

Organization, Powers, Capitalization

Authorization of Borrowing, No Conflict

Financial Condition

Indebtedness and Liabilities

[Reserved]

Names and Locations

Title to Properties; Liens

Litigation; Adverse Facts

Payment of Taxes

Performance of Agreements

ERISA Compliance

Broker’s Fees

Environmental Compliance

Solvency

Disclosure

Insurance

Compliance with Laws; Government Authorizations; Consents

Employee Matters

Governmental Regulation

No Defaults

Margin Stock

Amendment of Schedules

Sanctions; Anti-Corruption Laws

Beneficial Ownership Certification

Material Contracts

Section 5

AFFIRMATIVE COVENANTS

Financial Statements and Other Reports

Maintenance of Properties

Further Assurances

Maintenance of Insurance

Use of Proceeds and Margin Security

Maintenance of Records and Books of Account

Preservation of Existence

Compliance with Laws

Tax Certificates

[Reserved]

Inspection

KYC Information; Beneficial Ownership

Sanctions; Anti-Corruption Laws

Post-Closing Obligations

Section 6

FINANCIAL COVENANTS

Section 7

NEGATIVE COVENANTS.

Indebtedness and Liabilities

Guaranties

Transfers, Liens and Related Matters

Investments and Loans

Restricted Payments

Restriction on Fundamental Changes

Organizational Documents

Transactions with Affiliates

Conduct of Business

Use of Proceeds

Fiscal Year; Accounting Changes

Investment Accounts

Warehouse Receipts Non-Negotiable

Compliance with Anti-Terrorism Laws

Repayment of Indebtedness

Holdings Activities

Section 8

DEFAULT, RIGHTS AND REMEDIES

Event of Default

Equity Cure.

Suspension of Commitments

Acceleration

Remedies

Appointment of Attorney-in-Fact

Limitation on Duty of Agent and Lenders with Respect to Collateral

Application of Proceeds

[Reserved]

[Reserved].

Waivers; Non-Exclusive Remedies

Section 9

AGENT; LENDER RIGHTS

Agent

Notice of Default

Action by Agent

Amendments, Waivers and Consents

Assignments and Participations in Loans

Settlements, Payments and Information

Lead Arranger and Other Titles

Non-Receipt of Funds by Agent; Erroneous Payments.

Section 10

MISCELLANEOUS

Expenses and Attorneys’ Fees

Indemnity

Notices

Survival of Representations and Warranties and Certain Agreements

Indulgence Not Waiver

Marshaling; Payments Set Aside

Entire Agreement

Severability

Lenders’ Obligations Several; Independent Nature of Lenders’ Rights

Headings

APPLICABLE LAW

Successors and Assigns

No Fiduciary Relationship; No Duty; Limitation of Liabilities

CONSENT TO JURISDICTION

WAIVER OF JURY TRIAL

Construction

Counterparts; Effectiveness

Confidentiality

Publication

Waivers

Keepwell

USA PATRIOT ACT

Certifications From Lenders and Participants; USA PATRIOT ACT

Contractual Recognition of Bail-In

Acknowledgment Regarding Supported QFCs

Certain ERISA Matters

Farm Credit Equity

Waiver of Borrowers’ Rights Under Farm Credit Law

Section 11

COLLATERAL AND SECURITY INTEREST; GUARANTY.

Grant of Security Interest

Collateral Warranties and Covenants

Joinder of Borrowers; Guaranty; Nature and Extent of Each Loan Party’s Liability

Section 1 DEFINITIONS AND ACCOUNTING TERMS

1.1 Certain Defined Terms.  The capitalized terms not otherwise defined in this Agreement shall have the meanings set forth below:



Level

Average Daily Availability

Base Rate Margin

Term SOFR Margin

Unused Commitment Fee

1

≥ 70%

1.50%

2.50%

0.375%

2

> 25% and < 70%

1.50%

2.50%

0.325%

3

≤ 25%

1.25%

2.25%

0.275%

(a) 90% of Eligible Unrestricted Accounts, plus

(b) the lesser of (x) 90% of Eligible Foreign Accounts and (y) $50,000,000, plus

(c) the lesser of (x) 90% of Eligible Unbilled Accounts and (y) $10,000,000, plus

(d) the lesser of (x) 90% of Eligible Supply Chain Accounts and (y) twenty-five percent (25%) of the sum of clauses (a) through (e) of this definition, plus

(e) the lesser of (x) 90% of Eligible Affiliated Accounts and (y) $30,000,000, plus

(f) the lesser of (x) 90% of Eligible Net Liquidation Value in Commodity Accounts and (y) $50,000,000, plus

(g) 80% of the Market Value of Eligible Inventory constituting ethanol, dried distiller’s grains, corn oil or natural gas, plus

(h) 85% of the Market Value of Eligible Inventory constituting grains or maximized stillage co-products protein, plus

(i) 85% of the Net Positive Equity in Forward Contract Positions, plus

(j) 100% of Eligible Cash and Cash Equivalents, minus

(k) 100% of all payables related to Borrowers’ Inventory constituting grain, minus

(l) 100% of all Letter of Credit Liability, minus

(m) 100% of all prepayments from any Borrower’s customers, minus

(n) 100% of the Net Negative Equity in Forward Contract Positions, minus

(o) such reserves as Agent may establish from time to time in its Permitted Discretion in an amount not to exceed $10,000,000.

(i) each category of the Borrowing Base shall be calculated taking into account any elimination and reduction related to any potential offset to such asset category;

(ii) without duplication, the calculation of the value of the assets that are attributable to a single counterparty shall be netted against any contra, offset, counterclaim or obligations of any Borrower with such counterparty including, without limitation, amounts payable and unrealized marked-to-market forward loss owing by any Borrower to such counterparty;

(iii) if any Borrowing Base Certificate omits any of the information required to be included therein pursuant to the terms hereof, the property of Borrowers related to such undelivered information shall be excluded from the calculation of the Borrowing Base until the date on which Agent has received a Borrowing Base Certificate containing the undelivered information (provided that the provisions of this clause (iii) shall not constitute a waiver of any Default of Event of Default hereunder); and

(iv) Agent may, in its Permitted Discretion, and upon not less than five (5) Business Days’ prior written notice to the Borrowing Agent, deem any Inventory, Account or Commodity Account ineligible, or impose additional eligibility criteria, in any case, in its Permitted Discretion, but no such notice shall be required (x) if an Event of Default has occurred or is continuing, or (y) for changes to eligibility criteria or establishment of additional eligibility criteria if a Material Adverse Effect has occurred or Agent has determined it is reasonably likely that a Material Adverse Effect would occur were such eligibility criteria not changed or established prior to the three (3) Business Day period.  During any such applicable three (3) Business Day period, borrowings shall not be permitted if, after giving pro forma effect to the imposition of such change or new eligibility criteria, Revolving Availability would be less than zero.

(a) 100% of Eligible Unrestricted Accounts, plus

(b) the lesser of (x) 100% of Eligible Foreign Accounts and (y) $50,000,000, plus

(c) the lesser of (x) 100% of Eligible Unbilled Accounts and (y) $10,000,000, plus

(d) the lesser of (x) 100% of Eligible Supply Chain Accounts and (y) twenty-five percent (25%) of the sum of clauses (a) through (e) of this definition, plus

(e) the lesser of (x) 100% of Eligible Affiliated Accounts and (y) $30,000,000, plus

(f) the lesser of (x) 100% of Eligible Net Liquidation Value in Commodity Accounts and (y) $50,000,000, plus

(g) 100% of the Market Value of Eligible Inventory, plus

(h) 100% of the Net Positive Equity in Forward Contract Positions, plus

(i) 100% of Eligible Cash and Cash Equivalents, minus

(j) 100% of all payables related to Borrowers’ Inventory constituting grain, minus

(k) 100% of Letter of Credit Liability, minus

(l) 100% of all prepayments from any Borrower’s customers, minus

(m) 100% of the Net Negative Equity in Forward Contract Positions, minus

(a) such reserves as Agent may establish from time to time in its Permitted Discretion in an amount not to exceed $10,000,000.

(i) each category of the Collateral Formula Amount shall be calculated taking into account any elimination and reduction related to any potential offset to such asset category;

(ii) without duplication, the calculation of the value of the assets that are attributable to a single counterparty shall be netted against any contra, offset, counterclaim or obligations of Borrowers with such counterparty including, without limitation, amounts payable and unrealized marked-to-market forward loss owing by any Borrower to such counterparty;

(iii) if any Compliance Certificate or any Working Capital Schedule omits any of the information required to be included therein pursuant to Exhibit B or Schedule II  to Exhibit B, as applicable, the property of any Borrower related to such undelivered information shall be excluded from the calculation of the Collateral Formula Amount until the date on which Agent has received a Compliance Certificate containing the undelivered information (provided that the provisions of this clause (c) shall not constitute a waiver of any Default of Event of Default hereunder); and

(iv) Agent may, in its Permitted Discretion, and upon not less than three (3) Business Days’ prior written notice to the Borrowing Agent, deem any Inventory, Account or Commodity Account ineligible, or impose additional eligibility criteria, in any case, in its Permitted Discretion, but no such notice shall be required (x) if an Event of Default has occurred or is continuing, or (y) for changes to eligibility criteria or establishment of additional eligibility criteria if a Material Adverse Effect has occurred or Agent has determined it is reasonably likely that a Material Adverse Effect would occur were such eligibility criteria not changed or established prior to the three (3) Business Day period.  During any such applicable three (3) Business Day period, borrowings shall not be permitted if, after giving pro forma effect to the imposition of such change or new eligibility criteria, Revolving Availability would be less than zero.

(a) Accounts which do not consist of accounts receivable and contract receivables, each owed to and owned by a Borrower arising or resulting from the sale of goods or the rendering of services by such Borrower in the ordinary course of business;

(b) Accounts which are otherwise eligible with respect to which the Person obligated on such Account is owed a credit by a Borrower, but only to the extent of such credit;

(c) Accounts due from a Person whose principal place of business is located outside the United States of America or Canada;

(d) Accounts with respect to which the Account Debtor or the Person obligated with respect thereto is the United States of America, any state or any municipality, or any department, agency or instrumentality thereof, unless the applicable Borrower has, with respect to such Account, complied with the Federal Assignment of Claims Act of 1940 as amended (31 U.S.C. Section 3727 et seq.) or any applicable statute or municipal ordinance of similar purpose and effect;

(e) Accounts with respect to which the Person obligated (i) is an Affiliate of a Loan Party or a director, officer, agent, stockholder, member or employee of a Loan Party or any of their respective Affiliates, (ii) did not purchase the goods giving rise to the relevant Account in an arm’s length bona fide transaction conducted in the ordinary course of business in compliance with all applicable laws, (iii) is determined by Agent (in its Permitted Discretion) to be uncreditworthy, provided, that Agent shall deliver written notice to Borrowers promptly upon the determination that any Account is ineligible pursuant to this clause (iii) or (iv) is in contractual default in respect of such Accounts or any other Indebtedness or

obligation to any Borrower or any of its Subsidiaries, and Borrowers do not reasonably anticipate that any such other Indebtedness or other obligation or newly arising Indebtedness or other obligation of such Account Debtor, will not be paid when due;

(f) Accounts for which an invoice has not been delivered to the applicable Account Debtor;

(g) Accounts which have remained unpaid for more than ten (10) days after due date or thirty-five (35) days after the invoice date;

(h) Accounts due from a Person if more than twenty-five percent (25%) of the aggregate amount of Accounts of such Person are ineligible pursuant to the foregoing clause (g);

(i) [Reserved];

(j) Accounts evidenced by an Instrument or Chattel Paper not in the possession of Agent, for the benefit of itself and the Secured Parties;

(k) Accounts with respect to which Agent, on behalf of itself and Lenders, does not have a valid, first priority and fully perfected security interest;

(l) Accounts subject to any Lien (other than Liens for taxes arising by operation of law) except those in favor of Agent, for the benefit of itself and Lenders;

(m) Accounts with respect to which the Account Debtor or the Person obligated on the Account (i) is the subject of any bankruptcy or other insolvency proceeding, (ii) has had possession of all or a material part of its property taken by any receiver, custodian, trustee or liquidator, or (iii) has admitted in writing its inability, or is generally unable to, pay its debts as they become due;

(n) Accounts due from a Person and its Affiliates to the extent that such Accounts exceed in the aggregate an amount equal to twenty-five percent (25%) of the aggregate of all Eligible Accounts at said date;

(o) Accounts with respect to which the obligation to pay is conditional or subject to a repurchase obligation or right to return or with respect to which the goods or services giving rise to such Accounts have not been delivered (or performed, as applicable) and accepted by the Account Debtor or the Person obligated on such Account, including progress ▇▇▇▇▇▇▇▇, ▇▇▇▇ and hold sales, guarantied sales, sale or return transactions, sales on approval or consignments;

(p) Accounts with respect to which the Account Debtor or the Person obligated on the Account is located in New Jersey, or any other state denying out of state creditors access to its courts in the absence of a Notice of Business Activities Report or other similar filing, unless the applicable Borrower has either qualified as a foreign entity authorized to transact business in such state or has filed a Notice of Business Activities Report or similar filing with the applicable state agency for the then current year;

(q) Accounts subject to any offset, deduction, defense, dispute or counterclaim asserted in writing by the applicable Account Debtor (but only to the extent of the amount of such offset, deduction, defense, dispute or counterclaim);

(r) Accounts subject to or part of a Permitted Supply Chain Financing of Designated Supply Chain Accounts; and

(s) Accounts with respect to which the Account Debtor or the Person obligated on Account is a creditor of any Borrower; provided,  however, that any such Account shall only be ineligible as to that portion of such Account which is less than or equal to the amount owed by any Borrower to such Person.

(a) Inventory which does not substantially conform to the represented specifications and other quality standards of the applicable Restricted Loan Party or is not in compliance in all material respects with all standards imposed by any Governmental Authority having regulatory authority with respect thereto;

(b) Inventory which Agent determines in its Permitted Discretion, is unacceptable for purposes of determining the Collateral Formula Amount due to age, quality, type, category and/or quantity;

(c) shipping materials or supplies consumed in the applicable Restricted Loan Party’s business;

(d) Inventory with respect to which Agent, on behalf of itself and Lenders, does not have a valid, first priority and fully perfected security interest;

(e) Inventory with respect to which there exists any Lien in favor of any Person other than Agent, on behalf of itself and Lenders, other than Permitted Encumbrances;

(f) Inventory produced in violation of the Fair Labor Standards Act and subject to the so-called “hot goods” provisions contained in Title 29 U.S.C. 215(a)(i) or any replacement statute;

(g) Inventory not (i) located at a location described in Schedule 4.6 and owned by a Restricted Loan Party, (ii) held by a warehouseman, bailee, processor or similar third party that has executed and delivered to Agent a waiver of interest and access agreement in favor of Agent and in form and substance reasonably satisfactory to Agent or (iii) located at a location leased by a Restricted Loan Party and listed on Schedule 4.6 and with respect to which Agent has received a waiver of interest and access agreement in favor of Agent and in form and substance satisfactory to Agent;

(h) Inventory which has been sold, transferred, assigned or disposed of pursuant to or in connection with a Commodity Repurchase Agreement;

(i) Inventory that constitutes Consigned Inventory; and

(j) Inventory with respect to which the applicable Restricted Loan Party does not have absolute, legal, and valid title.

(a) such contract conforms to the applicable Borrower’s risk management policy;

(b) such contract must be evidenced by a written agreement or a binding and enforceable trade confirmation;

(c) such contract shall be subject to a valid and perfected first priority security interest in favor of Agent for the benefit of the Secured Parties, which security interest does not result in the violation by the applicable Borrower of such contract;

(d) such contract has not been terminated and is not subject to termination by reason of any existing known default or termination event thereunder;

(e) to the extent the counterparty to such contract is formed in, or conducts a substantial portion of its business outside of, the United States, then such counterparty is either a member country of the Organisation for Economic Co-operation and Development or is otherwise approved by Agent;

(f) if the applicable counterparty has become the subject of a proceeding under any Debtor Relief Laws, the applicable contract was entered into after the date on which such counterparty became the subject of such proceeding or such forward contract has been assumed by such counterparty in the applicable proceedings under such Debtor Relief Laws;

(g) the applicable counterparty is not otherwise in default under any contract or other agreement with any Loan Party (other than a good faith dispute under such contract or other agreement or with respect to any counterparty which is the subject of a proceeding under any Debtor Relief Laws, a payment default which occurred prior to the commencement of such proceeding);

(h) except for a forward contract described in clause (f) above, the applicable counterparty is not the subject of a proceeding under any Debtor Relief Laws;

(i) the law governing the applicable forward contract is the law of a state within the United States or any other jurisdiction agreed to by Agent;

(j) such contract is denominated in either Dollars or another currency approved by Agent;

(k) the jurisdiction for disputes under such forward contract is any state within the United States of America or any other jurisdiction agreed to by Agent;

(l) the delivery date and payment date for the corn to be sold or purchased pursuant to such contract is not more than twelve (12) months after the date of determination; and

(m) the applicable counterparty is not a Governmental Authority unless the assignment of rights to payment under such contract is permitted by applicable law.

(a) “Green House Gas (GHG)” means, reduction of GHG emissions intensity measured as MT of CO2e/Raw Material MT as reported in the applicable KPI Metrics Report

(n) “Renewable Corn Oil Production” means, increase in renewable corn oil yield (total amount of renewable corn oil per bushel of corn used) as reported in the applicable KPI Metrics Report

(o) “Sustainable Technology” means, increase in total number of plants converted to sustainable ultra-high protein technologies, such as Maximized Stillage Co-Products (MSC), or Clean Sugar Technology (CST) as reported in the applicable KPI Metrics Report

(p) “Total Recordable Incident Rate” means, reduction in Total Recordable Incident Rate (TRIR), which is the number of incidents per 200,000 workhours (Department of Labor – Occupational Safety and Health Administration) as reported in the applicable KPI Metrics Report

(i) Liens in favor of Agent securing the Obligations;

(ii) Liens (other than Liens relating to Environmental Claims or ERISA) for taxes, assessments, or similar charges, incurred in the ordinary course of business and which are not yet due and payable; or which are being contested in good faith with adequate reserved maintained with respect thereto;

(iii) Pledges or deposits (other than any Lien imposed by ERISA) made in the ordinary course of business to secure payment of worker’s compensation, or to participate in any fund in connection with worker’s compensation, unemployment insurance, old-age pensions or other social security programs;

(iv) Liens of mechanics, materialmen, warehousemen, carriers, or other like Liens, securing obligations incurred in the ordinary course of business that are not overdue by more than thirty (30) days;

(v) Liens of landlords or sublandlords securing obligations to pay lease payments that are not yet due and payable or in default;

(vi) Good-faith pledges or deposits made in the ordinary course of business to secure performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases, not in excess of the aggregate amount due thereunder, or to secure statutory obligations, or surety, appeal, indemnity, performance or other similar bonds required in the ordinary course of business;

(vii) Encumbrances consisting of zoning restrictions, easements or other restrictions on the use of real property, none of which materially impairs the use of such property or the value thereof, and none of which is violated in any material respect by existing or proposed structures or land use;

(viii) Liens and security interests securing Specified Indebtedness so long as, and only to the extent that, such Specified Indebtedness is subject to a Specified Indebtedness Intercreditor Agreement;

(ix) Liens securing Indebtedness permitted under Section 7.1(d);

(x) Liens encumbering any Commodity Repurchase Agreement Property (but no other property of any Borrower) and securing Commodity Repurchase Agreement Indebtedness permitted hereunder so long as the Macquarie Repurchase Intercreditor Agreement is in effect.

(xi) Rights of set-off of financial institutions and other Persons in the ordinary course of banking and trading arrangements;

(xii) Liens on proceeds of specified insurance policies to secure any portion of the unpaid amount of premiums payable by any Borrower in respect of such policies;

(xiii) The following, (A) if the validity or amount thereof is being contested in good faith by appropriate and lawful proceedings diligently conducted so long as levy and execution thereon have been stayed and continue to be stayed or (B) if a final judgment is entered and such judgment is discharged

within thirty (30) days of entry, and, in any case, they do not in the aggregate materially impair the ability of the Restricted Loan Parties to perform their obligations hereunder or under the other Loan Documents:

(a) such Borrower, prior to entering into such transaction, shall have provided Agent with copies of all documentation regarding such proposed Permitted Supply Chain Financing arrangements;

(q) such Borrower shall have obtained the prior written consent of Agent before entering into such transaction;

(r) all or substantially all of the cash proceeds of such transaction are applied to repay the principal balance of the Revolving Loan;

(s) such transaction shall be without recourse to any Borrower other than customary recourse terms provided for in the applicable documentation (in connection with the customary representations made with respect to the applicable Account or drafts/bills of exchange);

(t) any discount rate applicable to such transaction shall be reasonable and customary based on market terms at such time; and

(u) prior to, or after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing and the Restricted Loan Parties shall be in compliance with Section 6, determined on a pro forma basis.

(v) such Borrower either (i) is party hereto as a “Borrower” on the Closing Date or (ii) shall have executed and delivered to Agent a joinder agreement, in form and substance reasonably satisfactory to Agent, pursuant to which such Borrower shall have agreed to become a “Borrower” for all purposed under this Agreement and the other Loan Documents;

(w) subject to the time period set forth in Section 5.14(e), (i) such Borrower shall have entered into a Subsidiary Loan Agreement, in form and substance satisfactory to Agent in its reasonable discretion, a copy of which shall have been furnished to Agent, (ii) such Subsidiary Loan Agreement shall remain in full force and effect and shall have not been amended, waived or otherwise modified without the prior written consent of Agent and (iii) ▇▇ ▇▇▇▇▇ shall have taken all actions reasonably requested by Agent to grant Agent, for the benefit of the Secured Parties, a perfected, first priority security interest in such Subsidiary Loan Agreement and all related Subsidiary Loan Documents;

(x) such Borrower shall have taken such other actions as Agent shall have reasonably required to grant to Agent, for the benefit of itself and the Secured Parties, a perfected first priority security interest in all of the Collateral of such Borrower;

(y) such Borrower shall have delivered to Agent a secretary’s certificate or officer’s certificate satisfying the requirements set forth in Section 3.1(c);

(z) each of the Lenders shall have received, at least five (5) Business Days before the joinder of such Borrower, all documentation and other information reasonably requested it to satisfy its obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act; and

(aa) and if requested by Agent, such Borrower shall have delivered to Agent customary legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to Agent.



0.10%

Interest Period

Percentage

One month

0.10%

Three months

0.15%

Six months

0.25%

(a) The Group has failed to deliver the Sustainability Documents with respect to that calendar year in accordance with paragraph (p) of the Reporting Rider, or

(bb) The methodology for the determination of the Realized Score for one or more Key Performance Indicators has been altered in a material way compared to the methodology applied for the determination of the Baseline as published in the Initial KPI Metrics Report without the consent of the Requisite Lenders.

1.2 UCC Defined Terms.  The following terms used in this Agreement shall have the respective meanings provided for in the UCC: “Accounts”, “Account Debtor”, “Buyer in Ordinary Course of Business”, “Chattel Paper”, “Commercial Tort Claim”, “Commodity Account”, “Commodity Contract”, “Commodity Intermediary”, “Deposit Account”, “Documents”, “Electronic Chattel Paper”, “Equipment”, “Farm Products”, “Fixtures”, “General Intangibles”, “Goods”, “Instruments”, “Inventory”, “Investment Property”, “Letter of Credit”, “Letter-of-Credit Rights”, “Licensee in Ordinary Course of Business”, “Payment Intangibles”, “Proceeds”, “Record”, “Securities Account”, “Securities Intermediary”, “Software”, “Supporting Obligations” and “Tangible Chattel Paper”.

1.3 Accounting Terms.  For purposes of this Agreement, all accounting terms not otherwise defined herein shall have the meanings assigned to such terms in conformity with GAAP.  Financial statements and other information furnished to Agent or any Lender pursuant to Section 5.1 shall be prepared in accordance with GAAP (as in effect at the time of such preparation) on a consistent basis.  In the event any “Accounting Changes” (as defined below) shall occur and such changes affect financial covenants, standards or terms in this Agreement, then Borrowers and the Lenders agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the financial condition of Borrowers shall be the same after such Accounting Changes as if such Accounting Changes had not been made, and until such time as such an amendment shall have been executed and delivered by Borrowers and the Requisite Lenders, (A) all financial covenants, standards and terms in this Agreement shall be calculated and/or construed as if such Accounting Changes had not been made, and (B) Borrowers shall prepare footnotes to each Compliance Certificate and the financial statements required to be delivered hereunder that show the differences between the financial statements delivered (which reflect such Accounting Changes) and the basis for calculating financial covenant compliance (without reflecting such Accounting Changes). “Accounting Changes” means: (a) changes in accounting principles required by GAAP and implemented by Borrower; and (b) changes in accounting principles recommended by Borrower’s Accountants. All such adjustments resulting from expenditures made subsequent to the Closing Date (including, but not limited to, capitalization of costs and expenses or payment of pre-Closing Date liabilities) shall be treated as expenses in the period the expenditures are made.  Notwithstanding the foregoing, for purposes of determining compliance with any financial covenant contained herein, the effects of FASB Accounting Standards Update 2016-02 (Topic 842) shall be disregarded.

1.4 Other Definitional Provisions.  The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  The word “will” shall be construed to have the same meaning and effect as the word “shall.”  The word “or” is not exclusive. The word “year” shall refer (i) in the case of a leap year, to a year of three hundred sixty-six (366) days, and (ii) otherwise,

to a year of three hundred sixty-five (365) days.  Unless the context requires otherwise (a) 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, restated, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein or in any other Loan Document to Articles, Sections, Exhibits, Riders and Schedules shall be construed to refer to Articles and Sections of, and Exhibits, Riders and Schedules to, this Agreement or such other Loan Document, as applicable, (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, and (g) the words “renew”, “renewal” and variations thereof as used herein with respect to a Lender Letter of Credit means to extend the term of such Letter of Credit or to reinstate an amount drawn under such Lender Letter of Credit or both.

1.5 Divisions.  For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws) (each, a “Division”): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time.  In no event shall any Loan Party be permitted to effectuate a Division and if any Subsidiary shall consummate a Division, such Subsidiary shall be required, promptly after the effectiveness of such Division, to comply with the requirements set forth in Section 5.12 to the extent applicable.

1.6 Rates.  Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes.  Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrowers.  Agent may select information sources or services in its reasonable discretion to ascertain the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and, except as otherwise provided in this Agreement, shall have no liability to the Borrowers, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.

Section 2 LOANS AND COLLATERAL

2.1 Loans.

(a) Revolving Loans.  Subject to the terms and conditions herein set forth, each Lender with a Revolving Loan Commitment severally agrees to make loans to Borrowers  from time to time in an aggregate principal amount that will not result in (i) such Lender’s Revolving Credit Exposure exceeding its Revolving Loan Commitment.  Amounts borrowed under this Section 2.1(a) may be repaid and reborrowed at any time prior to the earlier of (x) the termination of the Revolving Loan Commitment pursuant to Section 8.3 or (y) the Termination Date.   Except as otherwise provided herein, no Lender shall have any obligation to make a Revolving Advance if such Revolving Advance would cause the Aggregate Revolving Credit Exposure (after giving effect to any immediate application of the proceeds thereof) to exceed the Maximum Revolving Loan Amount.

(b) [Reserved]. 

(c) Borrowing Mechanics. 

(i) Base Rate Loans made on any Funding Date shall be in an aggregate minimum amount of $100,000 and integral multiples of $100,000 in excess of such amount.  SOFR Loans made on any Funding Date shall be in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of such amount.

(ii) On any day when any Borrower desires a Revolving Advance, such Borrower, through Borrowing Agent, shall give Agent written or telephonic notice of the proposed borrowing by 2:00 p.m. (New York City time) on the Funding Date of a Base Rate Loan or three (3) Business Days in advance of the Funding Date of a SOFR Loan, which notice shall specify the proposed Funding Date (which shall be a Business Day), the amount of Loan requested, whether such borrowing shall consist of Base Rate Loans or SOFR Loans, and, for SOFR Loans, the Interest Period applicable thereto.  Neither Agent nor any Lender shall incur any liability to any Borrower for acting upon any telephonic notice or a Notice of Borrowing which Agent believes in good faith to have been given by a duly authorized officer or other person authorized to borrow on behalf of such Borrower or for otherwise acting in good faith under this Section 2.1(c).  Neither Agent nor any Lender will be required to make any advance pursuant to any telephonic or written notice or a Notice of Borrowing, unless all of the applicable terms and conditions set forth in Section 3 have been satisfied and Agent has received the most recent Compliance Certificate and all other documents required under Section 5 and the Reporting Rider by 2:00 p.m. (New York City time) on the date of such funding request. 

(iii) Each Revolving Advance shall be deposited by wire transfer in immediately available funds in such account as Borrowing Agent may from time to time designate to Agent in writing.  Borrowers’ failure to pay when due any amount required to be paid under this Agreement or any of the other Loan Documents as principal, Lender Letter of Credit reimbursement obligation, accrued interest, fees, compensation or any other amounts shall be deemed irrevocably to be an automatic request by Borrowers for a Revolving Advance, which shall be a Base Rate Loan, on the due date of, and in the amount required to pay (as set forth on Agent’s books and records), such principal, Lender Letter of Credit reimbursement obligation, accrued interest, fees, compensation or any other amounts.  Agent shall notify the Borrowers in writing promptly following the funding of any such Revolving Advance described in the immediately preceding sentence.

(d) Notes.  If so requested by any Lender by written notice to Agent at least two (2) Business Days prior to the Closing Date, or at any time thereafter, Borrowers shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 9.5) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after Borrower’s receipt of such notice) a Revolving Note to evidence such Lender’s Revolving Advances.

(e) Letters of Credit.  The Revolving Loan Commitments may be utilized, upon the request of the Borrowing Agent, for the issuance of letters of credit by Agent, or with the consent of Borrowers, Agent and the applicable Lender, any Lender (each a “Lender Letter of Credit”); provided that in no event shall any Lender Letter of Credit be issued to the extent that the issuance of such Lender Letter of Credit would cause the Aggregate Revolving Credit Exposure to exceed the Maximum Revolving Loan Amount.

(i) Maximum Amount.  The aggregate amount of Letter of Credit Liability with respect to all Lender Letters of Credit outstanding at any time shall not exceed $35,000,000. 

(ii) Reimbursement.  Borrowers shall be irrevocably and unconditionally obligated forthwith without presentment, demand, protest or other formalities of any kind, to reimburse Agent or the issuer for any amounts paid with respect to a Lender Letter of Credit, including all fees, costs and expenses, on the date such amounts are so paid.  Borrowers hereby authorize and direct Agent, at Agent’s option, to debit Borrowers’ account (by increasing the Revolving Loan) in the amount of any payment made with respect to any Lender Letter of Credit.  In the event that Agent elects not to debit Borrowers’ account and Borrowers fail to reimburse Agent in full on the date of any payment under a Lender Letter of Credit, Agent shall promptly notify each Lender of the unreimbursed amount of such payment together with accrued interest thereon and each Lender, on the next Business Day, shall deliver to Agent an amount equal to its respective participation in same day funds.  The obligation of each Lender to deliver to Agent an amount equal to its respective participation pursuant to the foregoing sentence shall be absolute and unconditional and such remittance shall be made notwithstanding the occurrence or continuation of an Event of Default or Default or the failure to satisfy any condition set forth in Section 3.  In the event any Lender fails to make available to Agent the amount of such Lender’s participation in such Lender Letter of Credit, Agent shall be entitled to recover such amount on demand from such Lender together with interest on such amount calculated at the Federal Funds Effective Rate.

(iii) Request for Letters of Credit.  Borrowers shall give Agent at least five (5) Business Days prior notice specifying the date a Lender Letter of Credit is to be issued, identifying the beneficiary and describing the nature of the transactions proposed to be supported thereby.  The notice shall be accompanied by the form of the Letter of Credit being requested.  Any Letter of Credit which any Borrower requests must be in such form, be for such amount, contain such terms and support such transactions as are reasonably satisfactory to the Issuing Bank.  Within three (3) Business Days following receipt of such notice from Borrowers, the Issuing Bank shall notify Borrowers if any terms of such requested Letter of Credit are not reasonably satisfactory to the Issuing Bank.  The expiration date of each Lender Letter of Credit shall be on a date which is at least five (5) Business Days prior to the Scheduled Termination Date unless otherwise agreed to by Agent (provided such expiration date shall not extend beyond the Scheduled Termination Date).  Notwithstanding the foregoing, a Lender Letter of Credit (1) shall be a standby letter of credit and (2) may include “evergreen” or automatic extension provisions; provided that (x) any such letter of credit shall permit the Issuing Lender to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such letter of credit) by giving prior notice to Borrowing Agent and the beneficiary thereof and (y) no such letter of credit shall extend or be permitted to extend beyond the Scheduled Termination Date.

(iv) Lender Participation. Each Lender shall be deemed to have purchased a participation in each Lender Letter of Credit issued on behalf of any Borrower, immediately and automatically upon such issuance, in an amount equal to its Pro Rata Share of the Aggregate Revolving Loan Commitment. 

(f) Other Letter of Credit Provisions.

(i) Obligations Absolute.  The obligation of Borrowers to reimburse Agent or any Lender for payments made under, and other amounts payable in connection with, any Lender Letter of Credit shall be unconditional and irrevocable and shall be paid under all circumstances strictly in accordance with the terms of this Agreement including, without limitation, the following circumstances:

(A) any lack of validity or enforceability of any Lender Letter of Credit, or any other agreement;

(B) the existence of any claim, set-off, defense or other right which any Borrower, any of its Subsidiaries or Affiliates or any other Person may at any time have against any beneficiary or transferee of any Lender Letter of Credit (or any Persons for whom any such transferee may be acting), Agent, any Lender, or any other Person, whether in connection with this Agreement, any other Loan Document, or any other related or unrelated agreements or transactions;

(C) any draft, demand, certificate or any other document presented under any Lender Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;

(D) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Loan Parties or any of their Subsidiaries;

(E) any breach of this Agreement or any other Loan Document by any party thereto;

(F) [reserved];

(G) the fact that a Default or an Event of Default shall have occurred and be continuing; or

(H) payment under any Lender Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Lender Letter of Credit; provided that, in the case of any payment by Agent or a Lender under any Lender Letter of Credit, Agent or such Lender has not acted with gross negligence or willful misconduct (as determined by a final non-appealable order by a court of competent jurisdiction) in determining that the demand for payment under such Lender Letter of Credit complies on its face with any applicable requirements for a demand for payment under such Lender Letter of Credit.

(ii) Nature of Lender’s Duties.  None of Agent, the Lenders nor any Issuing Lender, shall be responsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document by any party in connection with the application for and issuance of any Lender Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Lender Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Lender Letter of Credit to comply fully with conditions required in order to demand payment thereunder; provided that, in the case of any payment under any such Lender Letter of Credit, any Issuing Lender has not acted with gross negligence or willful misconduct (as determined by a final non-appealable order by a court of competent jurisdiction) in determining that the demand for payment under any such Lender Letter of Credit complies on its face with any applicable requirements for a demand for

payment thereunder; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any such Lender Letter of Credit; (G) for the credit of the proceeds of any drawing under any such Lender Letter of Credit; and (H) for any consequences arising from causes beyond the control of Agent or any Lender as the case may be.

(iii) Liability.  In furtherance and extension of and not in limitation of, the specific provisions herein above set forth, any action taken or omitted by Agent or any Lender under or in connection with any Lender Letter of Credit, if taken or omitted in good faith, shall not put Agent or any Lender under any resulting liability to Borrowers or any other Lender; provided that nothing in this Agreement shall relieve Agent or any Lender issuing a Lender Letter of Credit from liability for Agent’s or such Lender’s gross negligence or willful misconduct or breach in bad faith of its obligations under this Agreement (as determined by a court of competent jurisdiction in a final, non-appealable judgment) including in connection with actions or omissions described in this Section. 

(g) Swingline Loans.

(i) Swingline Loans.  Subject to the terms and conditions set forth herein, each Swingline Lender, in reliance on the agreements of the Lenders set forth in this Section, agrees to make Swingline Loans to Borrowers from time to time on any Business Day before the Termination Date, in an aggregate principal amount that will not result in (x) the Revolving Credit Exposure of any Lender exceeding its Revolving Loan Commitment, (y) the Aggregate Revolving Credit Exposure exceeding the Maximum Revolving Loan Amount or (z) the aggregate principal amount of outstanding Swingline Loans exceeding the Swingline Sublimit; provided,  further, that no Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan.  Within the foregoing limits and subject to the terms and conditions set forth herein, Borrowers may borrow, prepay and reborrow Swingline Loans.

(ii) Borrowing Procedures for Swingline Loans.  Each Swingline Borrowing shall be made upon Borrower’s notice to the applicable Swingline Lender and Agent.  Each such notice shall be in the form of a Swingline Loan Notice, appropriately completed and signed by a duly authorized officer of Borrowing Agent, or may be given by telephone (if promptly confirmed in writing by delivery of such a Swingline Loan Notice consistent with such telephonic notice) and must be received by such applicable Swingline Lender and Agent not later than 2:00 p.m. (New York City time) on the date (which shall be a Business Day) of the requested Swingline Borrowing, and such notice shall specify (i) the amount to be borrowed, which shall be in a minimum of $100,000 or a larger multiple of $100,000, and (ii) the date of such Swingline Borrowing (which shall be a Business Day).  Subject to the terms and conditions set forth herein, such Swingline Lender shall make each Swingline Loan available to Borrowers by credit to Borrowers’ account with such Swingline Lender or by wire transfer in accordance with instructions provided to (and reasonably acceptable to) such Swingline Lender, not later than 4:30 p.m. (New York City time) on the requested date of such Swingline Loan.

(iii) Participations by the Lenders in Swingline Loans.

(iv) Resignation of Swingline Lender.  Any Swingline Lender may resign at any time by giving 30 days’ prior notice to Agent, the Lenders and Borrower.  After the resignation of a Swingline Lender hereunder, the retiring Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement and the other Loan Documents with respect to Swingline Loans made by it prior to such resignation, but shall not be required to make any additional Swingline Loans.

(h) Availability of a Lender’s Pro Rata Share.

(i) Lender’s Amounts Available on a Funding Date.  Unless Agent receives written notice from a Lender on or prior to any Funding Date that such Lender will not make available to Agent as and when required such Lender’s Pro Rata Share of any requested Loan or participation in a Swingline Loan, Agent may assume that each Lender will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount.

(ii) Lender’s Failure to Fund.  A Defaulting Lender shall pay interest to Agent at the Federal Funds Effective Rate on the Defaulted Amount from the Business Day following the applicable Funding Date of such Defaulted Amount until the date such Defaulted Amount is paid to Agent.  A notice of Agent submitted to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is not paid when due to Agent, Agent, at its option, may notify Borrowers of such failure to fund and, upon demand by Agent, Borrowers shall pay the unpaid amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such borrowing, at a rate per annum equal to the interest rate applicable at the time to the Loan made by the other Lenders on such Funding Date.  The failure of any Lender to make available any portion of its Revolving Loan Commitments on any Funding Date or to fund its participation in a Lender Letter of Credit shall not relieve any other Lender of any obligation hereunder to fund such Lender’s Revolving Loan Commitment on such Funding Date or to fund any such participation, but no Lender shall be responsible for the failure of any other Lender to honor its Revolving Loan Commitment on any Funding Date or to fund any participation to be funded by any other Lender.

(iii) Payments to a Defaulting Lender.  Any payment of principal, interest, fees or other amounts received by Agent for the account of a Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 8.3 or otherwise) or received by Agent from a Defaulting Lender pursuant to Section 9.6 shall be applied at such time or times as may be determined by the Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Lender or Swingline Lender hereunder; third, to deposit with Agent for the benefit of any Issuing Lender cash collateral in an amount equal to such Defaulting Lender’s Pro Rata Share of the aggregate amount of Letter of Credit Liability with respect to Lender Letters of Credit issued by such Issuing Lender; fourth, as Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fifth, if so determined by the Agent and Borrowers, to be held in a Deposit Account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) to cash collateralize for the benefit of any Issuing Lender, such Defaulting Lender’s Pro Rata Share of future Letter of Credit Liability with respect to future Lender Letters of Credit issued by such Issuing Lender; sixth, to the payment of any amounts owing to the Lenders, the Issuing Lenders or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Swingline Lender or Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrowers as a result of any judgment of a court of competent jurisdiction obtained by Borrowers against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or a payment under any Lender Letters of Credit in respect of which such Defaulting Lender has not fully funded its Pro Rata Share, and (y) such Loans were made or the related Lender Letters of Credit were issued at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Lender Letters of Credit owed to, all non-defaulting Lenders based on their respective Pro Rata Share prior to being applied to the payment of any Loans of, or Lender Letters of Credit owed to, such

Defaulting Lender until such time as all Loans and funded and unfunded participations in Lender Letters of Credit or Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Loan Commitments, as applicable.  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.1(h)(iii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iv) Defaulting Lender’s Right to Vote.  No Defaulting Lender shall have any right to approve or disapprove any amendment, waiver, consent or any other action the Lenders or the Requisite Lenders have taken or may take hereunder (including any consent to any amendment or waiver pursuant to Section 9.4); provided that any waiver, amendment, consent or modification that (A) extends or increases the Loans or Revolving Loan Commitments of such Defaulting Lender, (B)  reduces, forgives or waives any payments of outstanding interest and principal of any Loans made by such Defaulting Lender, or applicable interest thereon (other than default interest) or (C) otherwise affects such Defaulting Lender in a manner that is disproportionately adverse relative to the non-Defaulting Lenders shall require the consent of such Defaulting Lender.

(v) Reallocation of Participations to Reduce Fronting Exposure.  All or any part of such Defaulting Lender’s participation in Lender Letters of Credit and Swingline Loans shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Revolving Loan Commitment) but only to the extent that such reallocation does not cause the Revolving Credit Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Loan Commitment.  Subject to Section 10.24, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation.  If the reallocation described above cannot, or can only partially, be effected, Borrowers shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lenders’ Fronting Exposure and (y) second, cash collateralize the Issuing Lenders’ Fronting Exposure in an amount equal to the amount set forth in Section 8.3(b).

(vi) Defaulting Lender Cure.  If Borrowers, Agent, each Issuing Lender and each Swingline Lender agree in writing that a Lender is no longer a Defaulting Lender, Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that such Defaulting Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Lender Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Revolving Loan Commitments, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrowers while that Lender was a Defaulting Lender; and provided,  further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(i) Protective Advances. 

(i) Subject to the limitations set forth below, Agent is authorized by Borrowers and the Lenders, from time to time in Agent’s sole discretion (but shall have absolutely no obligation to), to make Revolving Advances to Borrowers, on behalf of all Lenders, which Agent, in its Permitted Discretion, deems necessary or desirable (i) to preserve or protect the Collateral or any portion

thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations or (iii) to pay when due any other amount chargeable to or required to be paid by Borrowers pursuant to the terms of this Agreement, including payments of principal, interest, fees, premiums, reimbursable expenses (including costs, fees and expenses as described in Section 10.1) and other sums payable under the Loan Documents (any of such Revolving Advances are herein referred to as “Protective Advances”); provided that no Protective Advance shall cause the Aggregate Revolving Credit Exposure (after giving effect to any such Protective Advance or the application thereof) to exceed the Aggregate Revolving Loan Commitment then in effect.  Agent shall notify Borrowers promptly following any Revolving Advance made pursuant to the immediately preceding sentence.  The Protective Advances shall be secured by the Liens in favor of Agent in and to the Collateral and shall constitute Obligations hereunder. All Protective Advances shall be Base Rate Borrowings. Agent’s authorization to make Protective Advances may be revoked at any time by the Requisite Lenders. Any such revocation must be in writing and shall become effective prospectively upon Agent’s receipt thereof. At any time that the Aggregate Revolving Credit Exposure does not exceed the Aggregate Revolving Loan Commitment then in effect, Agent may request the Lenders to make Revolving Advances to repay a Protective Advance. At any other time Agent may require the Lenders to fund their risk participations described in clause (b) below.  Notwithstanding anything in this Section 2.1(i) to the contrary, Agent shall not make a Protective Advance if the making of such Protective Advance would cause the aggregate outstanding principal balance of the Protective Advances (including Protective Advances transferred to the Lenders pursuant to clause (ii) below, to the extent such Protective Advances have not been repaid by Borrowers) to exceed $25,000,000.

(ii) Upon the making of a Protective Advance by Agent (whether before or after the occurrence of a Default or an Event of Default), each Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Agent without recourse or warranty, an undivided interest and participation in such Protective Advance in proportion to its Pro Rata Share of the aggregate Revolving Loan Commitments. Each Lender shall transfer (a “Transfer”) the amount of such Lender’s Pro Rata Share of the outstanding principal amount of the applicable Protective Advance with respect to such purchased interest and participation promptly when requested to Agent, to such account of Agent as Agent may designate, but in any case not later than 3:00 p.m., New York City time, on the Business Day notified (if notice is provided by Agent prior to 12:00 p.m. New York City time, and otherwise on the immediately following Business Day (the “Transfer Date”)). Transfers may occur during the existence of a Default or an Event of Default and whether or not the applicable conditions precedent set forth in Section 3.2 have then been satisfied. Such amounts transferred to Agent shall be applied against the amount of the Protective Advance and, together with Lender’s Pro Rata Share of such Protective Advance, shall constitute Revolving Advances of such Lenders, respectively. If any such amount is not transferred to Agent by any Lender on such Transfer Date, Agent shall be entitled to recover such amount on demand from such Lender together with interest thereon. From and after the date, if any, on which any Lender is required to fund, and funds, its participation in any Protective Advance purchased hereunder, Agent shall promptly distribute to such Lender, such Lender’s Pro Rata Share of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Protective Advance.

2.2 Interest.

(a) Rate of Interest.  The Loans and all other Obligations shall bear interest from the date such Loans are made or such other Obligations become due to the date paid at a rate per annum equal to (i) in the case of Base Rate Loans and Obligations for which no interest rate basis is specified, the Base Rate plus the Adjusted Applicable Margin and (ii) in the case of SOFR Loans, Adjusted Term SOFR plus the Adjusted Applicable Margin (collectively the “Interest Rate”).  Such Interest Rate designation by the Borrowing Agent may be changed from time to time pursuant to Section 2.2(d).   After the occurrence and during the continuance of an Event of Default (i) the Loans and all other outstanding Obligations shall, at the election of Agent, bear interest at a rate per annum equal to two percent (2%) plus the applicable Interest

Rate (the “Default Rate”) (provided, the Loans and all other Obligations shall immediately bear interest at the Default Rate upon the occurrence of any Event of Default under in Sections 8.1(a),  (g), or (h)), (ii) each SOFR Loan shall automatically convert to a Base Rate Loan at the end of the Interest Period applicable to such SOFR Loan and (iii) no Loans may be made as or converted to SOFR Loans. 

(b) Computation and Payment of Interest.  Except as expressly set forth herein, interest on the Loans and all other Obligations shall be computed on the daily principal balance thereof on the basis of, (x) with respect to SOFR Loans and Obligations bearing interest at rates determined by reference to SOFR, a three hundred sixty (360) day year for the actual number of days elapsed, and (y) with respect to all other Loans (including Swingline Loans) and Obligations, a three hundred sixty-five (365) or three hundred sixty-six (366) day year, as applicable, for the actual number of days elapsed.  In computing interest on any Loan, the date of funding of the Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a SOFR Loan, the date of conversion of such SOFR Loan to such Base Rate Loan, shall be included; and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan, or with respect to a Base Rate Loan being converted to a SOFR Loan, the date of conversion of such Base Rate Loan to such SOFR Loan, shall be excluded; provided that if a Loan is repaid on the same day on which it is made, one (1) day’s interest shall be paid on that Loan.  Interest on Base Rate Loans and all other Obligations other than SOFR Loans shall be payable to Agent for the benefit of the Lenders quarterly in arrears on the first day of each quarter, on the date of any prepayment of Loans, and at maturity, whether by acceleration or otherwise.  Interest on SOFR Loans shall be payable to Agent for the benefit of the Lenders on the last day of the applicable Interest Period for such Loan, on the date of any prepayment of the Loans, and at maturity, whether by acceleration or otherwise.  In addition, interest on each SOFR Loan having an Interest Period longer than three (3) months, interest accrued on such Loan shall also be payable on the last day of each three (3) month interval during such Interest Period.

(c) Interest Laws.  Notwithstanding any provision to the contrary contained in this Agreement or any other Loan Document, Borrowers shall not be required to pay, and neither Agent nor any Lender shall be permitted to collect, any amount of interest in excess of the maximum amount of interest permitted by applicable law (“Excess Interest”).  If any Excess Interest is provided for or determined by a court of competent jurisdiction to have been provided for in this Agreement or in any other Loan Document, then in such event:  (i) the provisions of this subsection shall govern and control; (ii) no Borrower nor any other Restricted Loan Party shall be obligated to pay any Excess Interest; (iii) any Excess Interest that Agent or any Lender may have received hereunder shall be, at such Lender’s option, (A) applied as a credit against the outstanding principal balance of the Obligations or accrued and unpaid interest (not to exceed the maximum amount permitted by law), (B) refunded to the payor thereof, or (C) any combination of the foregoing; (iv) the interest rate(s) provided for herein shall be automatically reduced to the maximum lawful rate allowed from time to time under applicable law (the “Maximum Rate”), and this Agreement and the other Loan Documents shall be deemed to have been and shall be, reformed and modified to reflect such reduction; and (v) no Borrower nor any Restricted Loan Party shall have any action against Agent or any Lender for any damages arising out of the payment or collection of any Excess Interest.  Notwithstanding the foregoing, if for any period of time interest on any Obligations is calculated at the Maximum Rate rather than the applicable rate under this Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of interest payable on such Obligations shall remain at the Maximum Rate until each Lender shall have received the amount of interest which such Lender would have received during such period on such Obligations had the rate of interest not been limited to the Maximum Rate during such period.

(d) Conversion or Continuation.  Subject to the other provisions of this Agreement, including, without limitation, satisfying the conditions set forth in Section 2.2, Borrowers shall have the option to (i) convert at any time all or any part of outstanding Loans equal to $500,000 and integral multiples

of $100,000 in excess of that amount from Base Rate Loans to SOFR Loans or (ii) upon the expiration of any Interest Period applicable to a SOFR Loan, to (A) continue all or any portion of such SOFR Loan equal to $500,000 and integral multiples of $100,000 in excess of that amount as a SOFR Loan or (B) convert all or any portion of such SOFR Loan to a Base Rate Loan.  The succeeding Interest Period(s) of such continued or converted Loan commence on the last day of the Interest Period of the Loan to be continued or converted; provided that no outstanding Loan may be continued as, or be converted into, a SOFR Loan, when any Event of Default or Default has occurred and is continuing.

2.3 Fees.

(a) Unused Commitment Fee.  Borrowers shall pay to Agent, quarterly in arrears on the first day of each fiscal quarter beginning after the Closing Date, for the benefit of the Lenders, a fee in an amount equal to (i) (x) the sum of, for each day during the applicable fiscal quarter (A) the Aggregate Revolving Loan Commitment as of such day minus (B) the outstanding principal balance of the Revolving Loan as of such day, plus (C) the face amount of the Letter of Credit Reserve as of such day, divided by (y) the number of days in such fiscal quarter, multiplied by (ii) the Adjusted Applicable Margin for the Unused Commitment Fee in effect during such fiscal quarter.  Such fee shall be calculated on the basis of a three hundred sixty-five (365) or three hundred sixty-six (366) day year, as applicable, for the actual number of days elapsed.

(b) Letter of Credit Fees.  Borrowers shall pay to Agent a fee with respect to the Lender Letters of Credit (i) on the first day of each fiscal quarter beginning after the Closing Date, for the benefit of all Lenders with a Revolving Loan Commitment (based on their respective Pro Rata Share of the Aggregate Revolving Loan Commitment), in an amount equal to the average daily amount of Letter of Credit Liability outstanding during the fiscal quarter then most recently ended multiplied by the Adjusted Applicable Margin for SOFR Loans as in effect on the date on which the fee is payable and (ii) for the account of Agent or such Lender issuing such Lender Letter of Credit, a fronting fee accruing at a rate per annum equal to 0.125% on the maximum undrawn face amount of such Lender Letter of Credit upon issuance and upon any extension thereof, together with such issuer’s standard documentary and processing charges in connection with the issuance, amendment, cancellation, negotiation, drawing under or transfer of the Lender Letter of Credit.  Such fees will be calculated on the basis of a three hundred sixty (360) day year for the actual number of days elapsed and will be payable quarterly in arrears on the first day of each quarter.

(c) Other Fees and Expenses.  Borrowers shall pay to Agent, for its own account, all charges for returned items and all other bank charges incurred by Agent, as well as Agent’s standard wire transfer charges for each wire transfer made under this Agreement.

(d) Fee Letter.  Borrowers shall pay to ING Capital the fees specified in that certain letter agreement dated as of the Closing Date between Borrowers and ING Capital (the “Fee Letter”).

2.4 Prepayments.

(a) Mandatory Prepayments.

(i) Over Formula Advance.  At any time that the Aggregate Revolving Credit Exposure exceeds the Maximum Revolving Loan Amount (an “Over Formula Advance”), Borrowers shall immediately repay the Revolving Loan to the extent necessary to eliminate the Over Formula Advance. 

(ii) Dispositions.  Within five (5) Business Days of receipt by any Borrower of the net cash proceeds (net of taxes, costs and expenses paid in connection therewith, and indebtedness required to be repaid in connection therewith) of any Disposition of any Collateral, to the extent that, so long as no Event of Default has occurred in is continuing, such net proceeds of such Dispositions exceed $5,000,000 in the aggregate in any fiscal year, Borrowers shall prepay the Obligations in an amount equal to such proceeds.  All such prepayments shall be applied to the Loans in accordance with Section 2.4(d).  Notwithstanding the foregoing and provided no Event of Default has occurred and is continuing, the prepayment described in this Section 2.4(a)(ii) shall not be required to the extent a Borrower reinvests the net proceeds of such Disposition in productive assets of a kind then used or usable in the business of such Borrower within one hundred eighty (180) days after the date of such Disposition (or enters into a binding commitment therefor within such one hundred eighty (180) day period and subsequently makes such reinvestment within ninety (90) days of the end of such one hundred eighty (180) day period); provided that (A) Borrowers remit such net proceeds to a Deposit Account that is subject to a Control Agreement on the date the applicable Borrower receives such net proceeds and (B) Borrowers notify Agent in writing of (x) their intent to reinvest such net proceeds at the time such net proceeds are received and (y) the completion of such reinvestment when such reinvestment occurs.    

(iii) Prepayments from Proceeds of Casualty Events.  Not later than three (3) Business Days following the receipt by any Restricted Loan Party of the proceeds of insurance, condemnation award, or other compensation in respect of any Casualty Event or series of related Casualty Events affecting any Collateral, Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the net cash proceeds of such Casualty Event(s) to the extent the aggregate amount of such net

cash proceeds exceed $5,000,000 during any fiscal year.  Notwithstanding the foregoing and provided no Event of Default has occurred and is continuing, such prepayment shall not be required to the extent a Borrower reinvests the net proceeds of such Casualty Event in productive assets of a kind then used or usable in the business of such Restricted Loan Party, within one hundred eighty (180) days after the date of such Casualty Event (or enters into a binding commitment thereof within said one hundred eighty (180) day period and subsequently makes such reinvestment within ninety (90) days of the end of the initial one hundred eighty (180) day period); provided that (A) Borrowers remit such net cash proceeds to a Deposit Account that is subject to a Control Agreement on the date the applicable Borrower receives such net cash proceeds and (B) Borrowers notify Agent in writing of (x) their intent to reinvest at the time such proceeds are received and (y) the completion of such reinvestment and when such reinvestment occurs.

(iv) Prepayments from Indebtedness.  Immediately upon the receipt by any Restricted Loan Party of any cash proceeds from the incurrence of any Indebtedness (other than Indebtedness permitted under Section 7.1 hereof), Borrowers shall prepay the Loans in an amount equal to such cash proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, in each case, paid to non-Affiliates, including reasonable legal fees and expenses.  All such prepayments shall be applied to the Loans in accordance with Section 2.4(d). The foregoing shall not be deemed to be implied consent to any such issuance or incurrence of Indebtedness or Equity Interests prohibited by the terms and conditions hereof.

(v) Prepayments from Equity Interests.  Immediately upon the receipt by any Restricted Loan Party of any cash proceeds from a capital contribution to, or the issuance of any Equity Interests of, any Restricted Loan Party (other than Equity Interests issued pursuant to any employee stock or stock option compensation plan), Borrowers shall prepay the Loans in an amount equal to such cash proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, in each case, paid to non-Affiliates, including reasonable legal fees and expenses.  All such prepayments shall be applied to the Loans in accordance with Section 2.4(d). The foregoing shall not be deemed to be implied consent to any such issuance of Equity Interests prohibited by the terms and conditions hereof.

(b) Voluntary Prepayments and Repayments.  Borrowers may, at any time upon not less than three (3) Business Days prior notice to Agent, prepay the Revolving Loan in an aggregate minimum amount of $100,000 and integral multiples of $50,000.  Any prepayment of the Obligations permitted in this Section 2.4(b) shall be subject to the payment of all fees set forth in Section 2.3, including, without limitation, the payment of any amounts owing pursuant to Section 2.12 resulting from such prepayment.  In the event any Lender Letters of Credit are outstanding at the time that any Borrower prepays the Obligations and desires to terminate the Revolving Loan Commitment, Borrowers shall cause Agent and each Lender to be released from all liability under any Lender Letters of Credit or, at Agent’s option, Borrowers shall (i) deposit with Agent for the benefit of all Lenders with a Revolving Loan Commitment cash in an amount equal to one hundred and three percent (103%) of the aggregate outstanding Letter of Credit Reserve to be available to Agent to reimburse payments of drafts drawn under such Lender Letters of Credit and pay any fees and expenses related thereto and (ii) prepay the fees payable under Section 2.3(b) with respect to such Lender Letters of Credit for the full remaining terms of such Lender Letters of Credit.  Upon termination of any such Lender Letter of Credit, the unearned portion of such prepaid fee attributable to such Lender Letter of Credit shall be refunded to Borrower.

(c) Payments on Business Days.  Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the payment may be made on the next succeeding Business Day and such extension of time shall be included in the computation of the amount of interest or fees due hereunder.

(d) Application of Prepayment Proceeds.  With respect to the prepayments described in Sections 2.4(b), such prepayments shall be applied to payment of principal in respect of the Revolving Loan until all Obligations in respect of the Revolving Loan have been repaid in full.    

2.5 Term of this Agreement.  This Agreement shall be effective until the date on which the Obligations (including any then due and owing indemnity obligations under this Agreement) have been indefeasibly paid in full in cash (or cash collateralized on reasonably satisfactory terms), and the Revolving Loan Commitments have been terminated (all of which shall occur in accordance with the terms of the Loan Documents).  The Revolving Loan Commitments shall automatically terminate (unless earlier terminated pursuant to the terms hereunder) on the Termination Date, and all Obligations shall become immediately due and payable without notice or demand on such date.  Notwithstanding any termination, until all Obligations have been fully paid and satisfied, Agent, on behalf of itself and the Lenders, shall be entitled to retain security interests in and liens upon all Collateral, and even after payment of all Obligations hereunder, Borrowers’ obligation to indemnify Agent and each Lender in accordance with the terms hereof shall continue.

2.6 Termination or Reduction of Commitments.

(a) Optional.  Borrowers may, upon notice to Agent, terminate the unused portion of the Revolving Loan Commitments, or from time to time reduce the unused Revolving Loan Commitments; provided that (i) each such notice shall be in writing and must be received by Agent at least three (3) Business Days prior to the effective date of such termination or reduction, and shall be irrevocable, (ii) any such partial reduction shall be in an aggregate amount of $1,000,000 or a larger multiple of $500,000 and (c)  Borrowers shall not terminate or reduce the Revolving Loan Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Aggregate Revolving Credit Exposure exceeding the Maximum Revolving Loan Amount.

(b) Application of Commitment Reductions.  Agent will promptly notify the Lenders of any termination or reduction of the Revolving Loan Commitments pursuant to this Section.  Upon any reduction of unused Revolving Loan Commitments, the Revolving Loan Commitment of each Lender shall be reduced by such Lender’s ratable share of the amount of such reduction. 

2.7 Payments Generally.

(a) All payments made by Borrowers with respect to the Obligations shall be made without deduction, defense, setoff or counterclaim.  All payments to Agent hereunder shall be made in U.S. Dollars, and unless otherwise directed by Agent, to Agent’s Account.  All payments remitted to Agent’s Account shall be distributed to each Lender based on its Pro Rata Share in respect of the relevant Loan (or other applicable share as provided herein) in like funds as received by wire transfer to such Lender.  All payments remitted to Agent’s Account in respect of the Obligations shall be credited to the Obligations on

the same Business Day as such payments are received by Agent in immediately available funds; provided, however, that payments  received by Agent after 3:00 p.m. (New York City time) shall be deemed received on the next Business Day.  Borrowers shall notify Agent by Noon (EST) if they intend to make any voluntary payment or repayment of the Obligations to the Agent’s Account.  Agent shall promptly distribute to each Lender its ratable share (or other applicable share as provided herein) of each payment received by Agent from Borrowers in respect of the Obligations in like funds as received by wire transfer to such Lender’s applicable lending office (or otherwise distribute such payment in like funds as received to the Person or Persons entitled thereto as provided herein).

(b) In its sole discretion, Agent may elect to honor the automatic requests by Borrowers for Revolving Advances for all principal, Lender Letter of Credit and Swingline Loan reimbursement obligations, interest, fees, compensation and any other amounts due hereunder or under any of the other Loan Documents on their applicable due dates pursuant to Section 2.1(c), and the proceeds of each such Revolving Advance, if made, shall be applied as a direct payment of the relevant Obligation.  To the extent such amounts exceed the Maximum Revolving Loan Amount of all Lenders, or if Agent elects to ▇▇▇▇ Borrowers for any amount due hereunder or under any of the other Loan Documents, such amount shall be immediately due and payable with interest thereon accruing from the applicable due date. 

2.8 Yield Protection.

(a) Capital Adequacy, Liquidity and Other Adjustments.  In the event any Lender shall have determined that the adoption after the date hereof of any law, treaty, governmental (or quasi-governmental) rule, regulation, guideline or order regarding capital adequacy, liquidity, reserve requirements or similar requirements or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy, liquidity, reserve requirements or similar requirements (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) from any central bank or governmental agency or body having jurisdiction does or shall have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender or any corporation controlling such Lender and thereby reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder, then Borrowers shall within thirty (30) days after notice and demand from such Lender (together with the certificate referred to in Section 2.8(c) and with a copy to Agent) pay to Agent, for the account of such Lender, additional amounts sufficient to compensate such Lender for such reduction. 

(b) Certificate for Reimbursement.  A certificate of a Lender or Issuing Lender setting forth the amount or amounts necessary to compensate such Lender or Issuing Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section (including a description of the events triggering such additional costs) and delivered to Borrowers, shall be conclusive absent manifest error. 

(c) Delay in Requests.  Failure or delay on the part of any Lender or Issuing Lender to demand compensation pursuant to this Section 2.8 shall not constitute a waiver of such Lender’s or Issuing Lender’s right to demand such compensation; provided that Borrowers shall not be required to compensate a Lender or Issuing Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender or Issuing Lender, as the case may be, notifies Borrowers of the event giving rise to such increased costs or reductions, and of such Lender’s or Issuing Lender’s intention to claim compensation therefor (except that, if the event giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

2.9 Taxes.

(a) No Deductions.  Any and all payments or reimbursements made hereunder shall be made free and clear of and without deduction for any and all taxes, levies, imposts, deductions, charges or withholdings imposed by a Governmental Authority, and all interest, penalties and other liabilities with respect thereto (all such taxes, levies, imposts, deductions, charges or withholdings and all liabilities with respect thereto referred to herein as “Tax Liabilities”), except as required by law.  If Borrowers shall be required by law to deduct or withhold any such Tax Liabilities from or in respect of any sum payable hereunder to Agent or any Lender, Borrowers 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 Liability is an Indemnified Tax, then the sum payable hereunder shall be increased as may be necessary so that, after making all required deductions or withholdings, Agent or such Lender receives an amount equal to the sum it would have received had no such deductions been made.

(b) Changes in Tax Laws.  In the event that, subsequent to the Closing Date, (1) any changes in any existing law, regulation, treaty or directive or in the interpretation or application thereof or (2) any new law, regulation, treaty or directive enacted or any interpretation or application thereof would subject Agent, Issuing Lender or any other Lender to any Tax Liabilities (other than Indemnified Taxes and Excluded Taxes) with respect to this Agreement, the other Loan Documents or any Loans made or Lender Letters of Credit issued hereunder, and the result of any of the foregoing is to increase the cost to Agent or such Lender of issuing any Lender Letter of Credit or making or continuing any Loan hereunder, as the case may be, or to reduce any amount receivable hereunder; then, in any such case, Borrowers shall promptly pay to Agent or such Lender, upon its notice and demand, any additional amounts necessary to compensate Agent or such Lender, on an after-tax basis, for such additional cost or reduced amount receivable, as determined by Agent or such Lender with respect to this Agreement or the other Loan Documents; provided that Borrowers shall not be required to compensate Agent or any Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that Agent or such Lender, as the case may be, notifies Borrowers of the event giving rise to such increased costs or reductions, and of Agent’s or such Lender’s intention to claim compensation therefor

(except that, if the event giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).  If Agent or any Lender becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Borrowers of the event by reason of which Agent or such Lender has become so entitled (with any such Lender concurrently notifying Agent).  A certificate as to any additional amounts payable pursuant to the foregoing sentence submitted by Agent or any Lender to Borrower, setting forth in reasonable detail the basis for the calculation thereof, shall, absent manifest error, be final, conclusive and binding for all purposes.

(c) Status of Lenders.  Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to Borrowers, at the time or times reasonably requested by Borrowers or Agent, such properly completed and executed documentation reasonably requested by Borrowers 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 Borrowers or Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrowers or Agent as will enable Borrowers or Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Without limiting the generality of the foregoing, any Lender that is a United States person (as defined in Section 7701(a)(30) of the IRC) shall deliver to Borrowers 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 Borrowers or Agent), executed copies of Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax.  Each Lender organized under the laws of a jurisdiction outside the United States (a “Foreign Lender”) as to which payments to be made under this Agreement are exempt from United States withholding tax or are subject to United States withholding tax at a reduced rate under an applicable statute or tax treaty shall provide to Borrowers and Agent (1) a properly completed and executed Internal Revenue Service Form W-8BEN, Form W-8BEN-E, IRS Form W-8IMY,  Form W-8ECI, W-9, certification to the effect that such Foreign Lender is entitled to the benefits of the exemption for portfolio interest under Section 881(c) of the IRC, and/or other applicable form, certificate or document prescribed by the Internal Revenue Service of the United States of America or reasonably requested by Borrowers or Agent certifying as to such Foreign Lender’s entitlement to such exemption or reduced rate of withholding with respect to payments to be made to such Foreign Lender under this Agreement (a “Certificate of Exemption”), or (2) a letter from any such Foreign Lender stating that it is not entitled to any such exemption or reduced rate of withholding (a “Letter of Non-Exemption”).  Prior to becoming a Lender under this Agreement and within fifteen (15) days after a reasonable written request of Borrowers or Agent from time to time thereafter, each Foreign Lender that becomes a Lender under this Agreement shall provide a Certificate of Exemption or a Letter of Non-Exemption to Borrowers and Agent.  If a Foreign Lender is entitled to an exemption with respect to payments to be made to such Foreign Lender under this Agreement (or to a reduced rate of withholding) and does not provide a Certificate of Exemption to Borrowers and Agent within the time periods set forth in the preceding paragraph, Borrowers or Agent shall withhold taxes from payments to such Foreign Lender at the applicable statutory rates and Borrowers shall not be required to pay any additional amounts as a result of such withholding; provided, however, that all such withholding shall cease upon delivery by such Foreign Lender of a properly completed and executed Certificate of Exemption to Borrowers and Agent.

(d) Stamp Taxes & Other Taxes.  The Loan Parties shall pay any present or future stamp or documentary taxes or any other excise or property taxes, charges, or similar levies which arise from any payment made hereunder or from the execution, delivery, or registration of, or otherwise with respect to, this Agreement or any Note, except any such taxes that are Other Connection Taxes imposed with respect to an assignment (collectively referred to herein as “Other Taxes”).  Without duplication of the foregoing or Section 2.9(a), Borrowers and each of the other Loan Parties shall indemnify Agent and each Lender for the full amount of Indemnified Taxes (including, without limitation, any Indemnified Taxes imposed by any jurisdiction on amounts payable under this Section 2.9(d)) paid by Agent or such Lender and any liability (including penalties, interest, and reasonable, out-of-pocket expenses, except those arising from the gross negligence or willful misconduct of such Lender or Agent) arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted. A certificate as to the amount of such payment or liability delivered to the Borrowers by Lender, setting forth in reasonable detail the basis for the calculation thereof, shall be final, conclusive and binding for all purposes absent manifest error. This indemnification shall be made within thirty (30) days from the date Agent or any Lender makes written demand therefor. 

(e) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Tax Liabilities as to which it has been indemnified pursuant to this Section (including by the payment of additional amounts pursuant to this Section), 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 Tax Liabilities giving rise to such refund), net of all out-of-pocket expenses (including Tax Liabilities) 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 (e) (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 (e), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (e) the payment of which would place the indemnified party in a less favorable net after-tax position than the indemnified party would have been in if the Tax Liabilities 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 Liabilities 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.

(f) Mitigation. If any Lender requires Borrowers to pay any Indemnified Taxes or additional amounts to Lender or any Governmental Authority for the account of Lender pursuant to this Section 2.9, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i)

would eliminate or reduce amounts payable pursuant to this Section 2.9 in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  Borrowers hereby agree to pay all reasonable, out-of-pocket costs and expenses incurred by such Lender in connection with any such designation or assignment.

2.10 Determining Rates; Illegality.    

(a) Inability to Determine Rates.  Subject to Section 2.13, if, on or prior to the first day of any Interest Period for any SOFR Loan:

(i) Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof, or

(ii) the Requisite Lenders determine that for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, and the Requisite Lenders have provided notice of such determination to Agent,

(b) Illegality.  Notwithstanding anything to the contrary herein or in any other Loan Document, if any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or to determine or charge interest rates based upon SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, then, upon notice thereof by such Lender to the Borrowing Agent (through Agent), (i) any obligation of the Lenders to make SOFR Loans, and any right of Borrowers to continue SOFR Loans or to convert Base Rate Loans to SOFR Loans, shall be suspended, and (ii) the interest rate on which Base Rate Loans shall, if necessary to avoid such illegality, be determined by Agent without reference to clause (c) of the definition of “Base Rate”, in each case until such Lender notifies Agent and the Borrowing Agent that the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, (A) Borrowers shall, if necessary to avoid such illegality, upon demand from any Lender (with a copy to Agent), prepay or, if applicable, convert all SOFR

Loans to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by Agent without reference to clause (c) of the definition of “Base Rate”), on the last day of the Interest Period therefor, if all affected Lenders may lawfully continue to maintain such SOFR Loans to such day, or immediately, if any Lender may not lawfully continue to maintain such SOFR Loans to such day, and (B) if necessary to avoid such illegality, Agent shall during the period of such suspension compute the Base Rate without reference to clause (c) of the definition of “Base Rate,” in each case until Agent is advised in writing by each affected Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR.  Upon any such prepayment or conversion, Borrowers shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.12.

2.11 Mitigation Obligations; Replacement of Lenders.    

(a) Designation of a Different Lending Office.  If any Lender requests compensation under Section 2.12, or requires Borrowers to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.9, then such Lender shall (at the request of the Borrowing Agent) 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 2.8 or 2.9, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender.  Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment

(b) Replacement of Lenders.  If any Lender requests compensation under Section 2.8, or if Borrowers are 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 2.9 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with paragraph (a) of this Section, then Borrowers may, at their 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, and consents required by, Section 9.5), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.8,  Section 2.9 or Section 2.12) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

(i) Borrowers shall have paid to Agent the assignment fee (if any) specified in Section 9.05;

(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.12) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrowers (in the case of all other amounts);

(iii) in the case of any such assignment resulting from a claim for compensation under Section 2.8 or payments required to be made pursuant to Section 2.9, such assignment will result in a reduction in such compensation or payments thereafter; and

(iv) such assignment does not conflict with applicable law.

2.12 Compensation.    In the event of (a)  the payment of any principal of any SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (c) the failure to borrow, convert, continue or prepay any SOFR Loan on the date specified in any notice delivered pursuant hereto, or (d)  the assignment of any SOFR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrowers pursuant to Section 2.11(b), then, in any such event, Borrowers shall compensate each Lender for any loss, cost and expense attributable to such event, including any loss, cost or expense arising from the liquidation or redeployment of funds.  A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section (including a description of the events triggering such additional costs) shall be delivered to the Borrowing Agent and shall be conclusive absent manifest error.  Borrowers shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.

2.13 Benchmark Replacement Setting. 

(a) Benchmark Replacement.   Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Borrowing Agent and the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Requisite Lenders.

(b) Benchmark Replacement Conforming Changes.   In connection with the use, administration, adoption or implementation of a Benchmark Replacement, Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.

(c) Notices; Standards for Decisions and Determinations.  Agent will promptly notify the Borrowing Agent and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement.  Agent will promptly notify the Borrowing Agent of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.13(d).  Any determination, decision or election that may be made by Agent or, if applicable, any Lender (or group of Lenders) pursuant

to this Section 2.13, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.13.

(d) Unavailability of Tenor of Benchmark.  Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by Agent in its reasonable discretion or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.

(e) Benchmark Unavailability Period.  Upon the Borrowing Agent’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrowing Agent may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrowing Agent will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans.  During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.

2.14 Margin Adjustment and Unused Commitment Fee Adjustment.

(a) Each of the Applicable Margin and the Unused Commitment Fee will be adjusted based on the information set forth in the KPI Compliance Certificate most recently furnished to Agent and the Sustainability Structuring Agent pursuant to the Reporting Rider as set forth below and at the times specified in paragraph (b) below:

(i) With respect to Green House Gas for any calendar year, the Applicable Margin with respect to Loans shall be increased or reduced by 2.5 basis points (0.025%) or remain unadjusted, and the Unused Commitment Fee shall be increased or reduced by 0.5 basis points (0.005%) or remain unadjusted, in each case as set forth in the Sustainability Table;

(ii) With respect to Renewable Corn Oil Production for any calendar year, the Applicable Margin with respect to Loans shall be increased or reduced by 2.5 basis points (0.025%) or remain unadjusted, and the Applicable Margin with respect to the Unused Commitment Fee shall be

increased or reduced by 0.5 basis points (0.005%) or remain unadjusted, in each case as set forth in the Sustainability Table;

(iii) With respect to Sustainable Technology for any calendar year, the Applicable Margin with respect to Loans shall be increased or reduced by 2.5 basis points (0.025%) or remain unadjusted, and the Applicable Margin with respect to the Unused Commitment Fee shall be increased or reduced by 0.5 basis points (0.005%) or remain unadjusted, in each case as set forth in the Sustainability Table;

(iv) With respect to Total Recordable Injury Rate for any calendar year, the Applicable Margin with respect to Loans shall be increased or reduced by 2.5 basis points (0.025%) or remain unadjusted, and the Applicable Margin with respect to the Unused Commitment Fee shall be increased or reduced by 0.5 basis points (0.005%) or remain unadjusted, in each case as set forth in the Sustainability Table; and

(v) With respect to any calendar year in which Unsuccessful Completion has occurred, the Sustainability Margin Adjustment with respect to Loans and the Sustainability Margin Adjustment with respect to the Unused Commitment Fee shall be zero.

(vi) Notwithstanding anything in this Agreement to the contrary, if (x) the Loan Parties fail to deliver the Sustainability Documents by the deadline set forth in paragraph (p) of the Reporting Rider for two (2) consecutive Fiscal Years or (y) if an Unsuccessful Completion occurs in two (2) consecutive Fiscal Years, then (A) the provisions of this Section 2.14 shall thereafter cease to be effective, (B) the Loan Parties will no longer be required to comply with paragraph (p) of the Reporting Rider and (C) this Loan Agreement and the credit facility provided for herein shall no longer be deemed to be a sustainability-linked loan for any purposes.

(b) In determining the Adjusted Applicable Margin:

(i) any applicable Sustainability Margin Adjustment determined by reference to a particular calendar year applies from the date which falls three (3) Business Days after receipt by Agent and the Sustainability Structuring Agent of the Sustainability Documents in accordance with paragraph (p) of the Reporting Rider relating to that calendar year until the date which falls three (3) Business Days after the earlier of (x) the receipt by Agent and the Sustainability Structuring Agent of the Sustainability Documents in accordance with paragraph (p) of the Reporting Rider for the immediately succeeding calendar year and (y) the date by which such Sustainability Documents are required to be furnished to Agent;

(ii) in the event no Sustainability Documents are received by Agent and the Sustainability Structuring Agent for a particular calendar year in accordance with paragraph (p) of the Reporting Rider, an Unsuccessful Completion shall be deemed to have occurred.

(iii) subject to clause (a)(v) above, any applicable Sustainability Margin Adjustment shall apply until the delivery of the subsequent KPI Compliance Certificate pursuant to the Reporting Rider; and

(iv) (A) only one KPI Compliance Certificate may be delivered in respect of any calendar year, and (B) any Sustainability Margin Adjustment shall be iterative and shall not be cumulative year-over-year, such that at no point will the aggregate Sustainability Margin Adjustment for Loans in any calendar year for Loans exceed 2.5 basis points (0.025%) per annum and at no point will the aggregate Sustainability Margin Adjustment in any calendar year for the Unused Commitment Fee exceed

0.5 basis points (0.005%) per annum, and accordingly, the Applicable Margin for Loans will never be reduced or increased, in the aggregate, by more than 10 basis points (0.10%), and the Applicable Margin for the Unused Commitment Fee will never be reduced or increased, in the aggregate, by more than 2 basis points (0.02%).

(c) Borrowers, the Sustainability Structuring Agent and Agent (acting on the instructions of the Requisite Lenders) may from time to time, following consultation in good faith on the basis of a written explanation provided by Borrowers or Holdings setting out in detail the relevant events or circumstances, agree in respect of any calendar year of any adjustment to:

(i) the method of calculation of any Key Performance Indicator or the third-party provider therefore or the provider of data for the purposes of determining such Key Performance Indicator; or

(ii) any Target Score,

(d) If (i) (A) any Borrower, any Guarantor or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment or the KPI Metrics as reported on the applicable KPI Compliance Certificate (a “KPI Compliance Certificate Inaccuracy”) and, not later than thirty (30) Business Days after obtaining knowledge thereof delivers a written notice to Agent describing such KPI Compliance Certificate Inaccuracy in reasonable detail (who shall furnish a copy to each of the Lenders and Borrowers) or (B) Borrowers and the Lenders agree that there was a KPI Compliance Certificate Inaccuracy at the time of delivery of the relevant KPI Compliance Certificate and (ii) a proper calculation of the Sustainability Margin Adjustment or the KPI Metrics would have resulted in an increase in the Adjusted Applicable Margin for such period, then Borrowers shall be obligated to pay to Agent for the account of the Lenders, promptly on demand by Agent (acting at the direction of the Requisite Lenders) (or, after the occurrence of an actual or deemed entry of an order for relief with respect to Borrowers under any Debtor Relief Law, automatically and without further action by Agent or any Lender), but in no event less than ten (10) Business Days after any Borrower has received written notice of, or has agreed in writing that there was, a KPI Compliance Certificate Inaccuracy, an amount equal to: (x) the excess of the amount of interest and fees that should have been paid for such period over (y) the amount of interest and fees actually paid for such period.  If any Borrower or any Guarantor becomes aware of any KPI Compliance Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment or the KPI Metrics would have resulted in a decrease in the Adjusted Applicable Margin for such period, then, upon receipt by Agent of notice from such Borrower of such KPI Compliance Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by Agent of such notice, the Adjusted Applicable Margin shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment or the KPI Metrics, as applicable.

(e) To the extent any event occurs (which would include, without limitation, a material disposal or material acquisition) which, in the opinion of Borrowers and the Sustainability Structuring Agent, acting reasonably and in good faith, means that one or more of the KPI Metrics is no longer appropriate, then Borrowers and the Sustainability Structuring Agent in consultation with Agent will propose adjustments to the baseline(s) and target(s) as necessary and will be subject to approval from the Requisite Lenders. In such a scenario, the Adjusted Applicable Margin each shall be adjusted to reflect the corrected calculations of such KPI Metrics.

(f) It is understood and agreed that any KPI Compliance Certificate Inaccuracy shall not constitute a Default or Event of Default, provided that Borrowers comply with the terms of this Section 2.14 with respect to such KPI Compliance Certificate Inaccuracy.  Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under any Debtor Relief Law, (i) any additional amounts required to be paid pursuant to clause (d) above shall not be due and payable until a written demand is made for such payment by Agent in accordance with clause (d) above, (ii) any nonpayment of such additional amounts prior to such demand for payment by Agent shall not constitute a Default (whether retroactively or otherwise), and (iii) none of such additional amounts shall be deemed overdue prior to such a demand or shall accrue interest at the Default Rate prior to such a demand.

(g) Agent and the Sustainability Structuring Agent shall not have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by Borrowers or any Guarantor of any Sustainability Margin Adjustment (or for the KPI Metrics or any of the other data or computations that are part of or related to any such calculation) set forth in any KPI Compliance Certificate, or for evaluating or determining any KPI Compliance Certificate Inaccuracy (and Agent may rely conclusively, and shall not incur any liability in so relying, on any such certificate or related notice, without further inquiry).

2.15 Uncommitted Accordion.    

(a) At any time after the Closing Date, on the written request of Borrowers (but subject to the conditions set forth in this Section 2.15), the Aggregate Revolving Loan Commitment may be increased by an amount in the aggregate for all such increases of the Aggregate Revolving Loan Commitment not to exceed $100,000,000 (each such increase, an “Increase”).  Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $500,000 in excess thereof (provided that any such Increase may be in an amount equal to, in its entirety, the outstanding balance of available Increases) and at an interest rate equal to the interest margins applicable to Revolving Advances set forth in this Agreement.

(b) Following receipt of any written request under Section 2.15(a), Agent shall promptly notify the Lenders of the requested Increase, and, within ten (10) Business Days after such notification, each Lender shall notify Agent if and to what extent such Lender commits to increase its Revolving Loan Commitment in connection with such Increase.  Any Lender not responding within such period shall be deemed to have declined to participate in the requested Increase.  If the Lenders, in the aggregate, fail to, or elect not to, commit to the full requested Increase, Eligible Assignees selected by Borrowers may issue additional Revolving Loan Commitments and become Lenders hereunder in order to provide the full requested Increase.  Agent may allocate, with the consent of Borrowers (such consent not to be unreasonably withheld, conditioned or delayed), the increased Revolving Loan Commitments among committing Lenders and, if necessary, Eligible Assignees at its discretion.  Provided the conditions set forth in clause (d) below are satisfied, the Aggregate Revolving Loan Commitment shall be increased by the requested amount (or such lesser amount committed by Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrowers.  Agent, Loan Parties, and new and existing Lenders shall execute and deliver such documents and agreements as Agent deems appropriate to evidence the increase in and allocations of Revolving Loan Commitments.

(c) All Revolving Loan Commitments, and all Revolving Advances thereunder, established pursuant to this Section 2.15 shall be on the same terms (as amended from time to time) (including interest rate margin and maturity date, but excluding arrangement, structuring and underwriting fees with respect to such Revolving Loan Commitments and Revolving Advances) as, and pursuant to documentation applicable to, the initial Revolving Loan Commitments and Revolving Advances.  Unless

otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Revolving Loan Commitments pursuant to this Section 2.15.  The Revolving Loan Commitments, and all Revolving Advances thereunder, established pursuant to this Section 2.15 shall constitute Revolving Loan Commitments and Revolving Advances, as applicable, under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents.  Concurrently with any Increase, Borrowers, Agent and the Lenders providing such increase may, at their option, jointly agree to amend Schedule 1.1;  provided that no such amendment may result in an increase in the Revolving Loan Commitments or funding obligations of any Lender not participating in such Increase.  Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Revolving Loan Commitments.  In no event shall the provisions of this Section 2.15 or any other provision of this Agreement or any other Loan Document be deemed to create any obligation on the part of any Lender to agree to any increase in the Revolving Loan Commitments, and Borrowers agree that any election with respect to any such increase shall be at the sole option of each Lender.

(d) No Increase shall be effective unless:

(i) Agent has obtained the commitment of Lenders (or Persons committing to become Lenders concurrently with the incurrence of the Increase) to provide the applicable Increase, it being agreed that no Lender shall have any obligation to commit to provide any Increase and that Agent shall have no liability for the failure to obtain such commitments;

(ii) immediately before and after such Increase (determined on a pro forma basis) (x) no Default or Event of Default shall have occurred and be continuing and (y) the Loan Parties shall be in compliance with Section 6 hereof;

(iii) the representations and warranties of each Loan Party contained in the Loan Documents shall be true and correct in all material respects (without duplication of any materiality or knowledge qualifier contained therein) on and as of the date of such Increase, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct in all material respects (without duplication of any materiality or knowledge qualifier contained therein) as of such specific date; and

(iv) the Loan Parties shall have delivered such other documents, instruments. legal opinions and agreements as Agent may reasonably require in connection with the applicable Increase.

Section 3 CONDITIONS TO LOANS

3.1 Conditions to Initial Loans and Lender Letters of Credit.  The obligations of Agent and each Lender to make the initial Loans (including any Swingline Loan being made on the Closing Date) and/or the obligation of Agent or any Lender to issue (or cause the issuance of) the initial Lender Letters of Credit on the Closing Date are subject to satisfaction of all of the terms and conditions set forth below and the accuracy of all the representations and warranties of Borrowers and the other Loan Parties set forth herein and in the other Loan Documents:

(a) Closing Deliveries.  Agent’s receipt of the following, each of which shall be originals or telecopies or in electronic format (i.e., “pdf” or “tif”) (followed promptly by originals) unless otherwise specified, each properly executed by a duly authorized officer of the signing parties, each dated

the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):

(i) this Agreement, duly executed and delivered by Holdings and Borrowers in form and substance reasonably satisfactory to Agent and each of the Lenders;

(ii) for the account of each Lender that has requested a Revolving Note at least two (2) Business Days prior to the Closing Date, a Revolving Note, as the case may be, each conforming to the requirements hereof and duly executed and delivered by a duly authorized officer of each Borrower;

(iii) a perfection certificate, in form and substance reasonably satisfactory to Agent, duly executed and delivered by each Borrower;

(iv) the Fee Letter, duly executed and delivered by each Borrower;  

(v) a Working Capital Schedule, duly executed and delivered by the Borrowers;

(vi) a copy of the Initial KPI Metrics Report; and

(vii) all other documents, instruments, agreements, notes, certificates, orders, authorizations, financing statements, and other documents, each in form and substance satisfactory to Agent, which Agent may reasonably request in advance of the Closing Date.

(b) Security Interests.  Agent shall have received satisfactory evidence that all security interests and liens granted to Agent, for the benefit of the Secured Parties, pursuant to this Agreement or the other Loan Documents have been duly perfected and constitute a Prior Security Interest in the Collateral, subject only to Permitted Encumbrances.

(c) Secretary’s Certificates.  Agent shall have received a certificate of a duly authorized officer of each Loan Party certifying and acknowledging (1) that attached copies of such Loan Party’s Organizational Documents are true and complete, and in full force and effect, without amendment except as shown, (2) that an attached copy of resolutions authorizing the execution, delivery and performance of the Loan Documents by such Loan Party is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility, (3) the names of the officers of each Loan Party authorized to sign this Agreement and each of the other Loan Documents to which any Loan Party is or is to be a party hereunder (including the certificates contemplated herein) together with specimen signatures of such officers, and (4) certificates of good standing, status, compliance or similar certificates dated not more than ten (10) days prior to the Closing Date for each of the Loan Parties issued by their respective jurisdictions of organization and each jurisdiction where they are qualified to operate as a foreign or extra-provincial corporation, or its equivalent.

(d) Fees and Expenses.  Borrowers shall have paid all fees, costs and expenses due and payable under this Agreement and the other Loan Documents.

(e) Performance of Agreements.  Each Loan Party shall have performed in all material respects all agreements and satisfied all conditions which any Loan Document provides shall be performed by it on or before the Closing Date.

(f) No Prohibition.  No order, judgment or decree of any court, arbitrator or Governmental Authority shall purport to enjoin or restrain Agent or any Lender from making any Loans or issuing any Lender Letters of Credit.

(g) No Litigation.  There shall not be pending or, to the Knowledge of Borrowers, threatened, any action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration by, against or affecting any Loan Party or any property of any Loan Party that has not been disclosed to Agent by the Loan Parties in writing, and there shall have occurred no development in any such action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration that, in the opinion of Agent, would reasonably be expected to have a Material Adverse Effect.

(h) No Material Adverse Effect.  There shall have not occurred any Material Adverse Effect since December 31, 2021. 

(i) Corporate Structure.  The documentation reflecting the ownership, capital, corporate, tax, organizational and legal structure of the Loan Parties shall be acceptable to Agent.

(j) Regulatory Approvals and other Third-Party Approvals.  The Loan Parties shall have received (i) any and all regulatory approvals necessary to consummate the transactions contemplated by the Loan Documents, which approvals are final and non-appealable and (ii) any and all corporate and other third party approvals necessary to consummate the transactions contemplated by the Loan Documents.

(k) Insurance Policies.  Agent shall have received certificates evidencing the Restricted Loan Parties’ property and casualty, liability, workers compensation, business interruption, and other insurance, in each case, satisfying the requirements Section 4.16 hereof, with, subject to Section 5.14, appropriate endorsements naming Agent as loss payee and additional insured, as applicable. 

(l) Projections.  Agent shall have received satisfactory Projections, including an annual projected operating budget and cash flow on a consolidated basis, for the following Fiscal Years: 2023, 2024, 2025 and 2026, each year by year, including a balance sheet and cash flow statement as at the last day of each Fiscal Year and the relevant assumptions used to make such calculations.

(m) Due Diligence.  Agent shall have completed due diligence on the Loan Parties to its reasonable satisfaction, including, but not limited to, review of Employee Benefit Plans, employment agreements with key personnel, union labor contracts, any actual or potential Environmental Claims, and the business, operations, prospects, customer relations, and contracts of the Loan Parties, which review is satisfactory to Agent in all respects.

(n) PATRIOT Act; Beneficial Ownership Certification.  To the extent requested at least five (5) days prior to the Closing Date, the Lenders shall have received, sufficiently in advance of closing, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act.   At least five (5) days prior to the Closing Date, Borrowers shall deliver to Agent a Beneficial Ownership Certification in relation to Borrower.

(o) Existing Indebtedness. The Indebtedness of each of the Borrowers outstanding immediately prior to the Closing Date (other than Indebtedness permitted under Section 7.1) shall have been (or concurrently with the initial borrowing will be) paid in full.  Agent shall have received payoff letters from the existing lenders or holders of such Indebtedness in connection with the existing Indebtedness to be paid off, each in form and substance reasonably satisfactory to Agent, together with UCC termination statements, releases or assignment (as mutually agreed between the Borrowers and Agent)

of mortgage Liens, and other instruments, documents and/or agreements necessary or appropriate to terminate any Liens, commitments and guaranties in connection with such existing Indebtedness, which is to be indefeasibly paid in full on or prior to the Closing Date, as Agent may reasonably request, duly executed and in recordable form, if applicable, and otherwise in form and substance reasonably satisfactory to Agent.

(p) Solvency.  Agent shall have received a certificate from Borrowers certifying that, after giving effect to the transactions contemplated by this Agreement, Borrowers, taken as a whole, are Solvent.

(q) Closing Certificate. Agent shall have received a closing certificate signed by the Chief Financial Officer of each Borrower dated as of the date hereof, stating that (i) all representations and warranties set forth in this Agreement are true and correct on and as of such date, (ii) Borrowers are on such date in compliance with all the terms and provisions set forth in this Agreement and the other Loan Documents and (iii) on such date no Default or Event of Default has occurred or is continuing.

(r) Legal Opinion.  Agent shall have received opinions of Husch ▇▇▇▇▇▇▇▇▇ LLP counsel to the Loan Parties, dated as of the Closing Date addressed to Agent and the Lenders and covering such matters as the Agent or the Lenders may reasonably request.

3.2 Additional Conditions to All Loans and Lender Letters of Credit.  The obligations of Agent and each Lender to make Loans (including any Swingline Loan) and the obligation of Agent or any Lender to issue (or cause the issuance of) Lender Letters of Credit on each Funding Date (including the Closing Date) shall be subject to the further conditions precedent that (i) on or prior to the date of such Loan or issuance, Agent (and the applicable Swingline Lender to Issuing Lender, as applicable) shall have received all notices required in accordance with the terms of this Agreement and (ii) on the date of such Loan or the date of such issuance, the following statements shall be true and correct (and each of the giving of any applicable Notice of Borrowing, and the acceptance by Borrowers (or any of them) of the proceeds of each Borrowing, and each Lender Letter of Credit issued, increased or extended on behalf of Borrowers, shall constitute a representation and warranty by Borrowers, that on the date of such borrowing such statements are true and correct):

(a) Representations and Warranties.  The representations and warranties of Borrowers contained in this Agreement are true and correct in all material respects (except that (i) for those representations and warranties already qualified by concepts of materiality or knowledge, those representations and warranties shall be true and correct in all respects and (ii) for those representations and warranties that relate solely to an earlier date, those representations and warranties shall be true and correct in all material respects as of such earlier date), before and after giving effect to such Loan or issuance, and to the application of the proceeds therefrom;

(b) Availability.  Aggregate Revolving Credit Exposure shall not exceed the Maximum Revolving Loan Amount; and

(c) No Default.  No Default or Event of Default shall have occurred and be continuing or would result from such Loan or issuance.

Section 4 REPRESENTATIONS AND WARRANTIES.

4.1 Organization, Powers, Capitalization.

(a) Organization and Powers.  Each of the Loan Parties is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and qualified to do business in all states and other jurisdictions where such qualification is required, in each case (other than the existence of Holdings and Borrowers) except where failure to be so qualified would not reasonably be expected to have a Material Adverse Effect.  Each of the Loan Parties has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and proposed to be conducted, except where such failure would not reasonably be expected to have a Material Adverse Effect, and to enter into each Loan Document.  The name of (within the meaning of Section 9-503 of the UCC) and jurisdiction of organization of each Loan Party is set forth on Schedule 4.6.  As of the Closing Date the chief executive office of each Loan Party is located at the address indicated on Schedule 4.6.  As of the Closing Date each Loan Party’s organizational identification numbers, if any, are identified on Schedule 4.6.

(b) Capitalization.  The authorized Equity Interests of each of the Restricted Loan Parties and its respective Subsidiaries as of the Closing Date is as set forth on Schedule 4.1(b), including all preemptive or other outstanding rights, options, warrants, conversion rights or similar agreements or understandings for the purchase or acquisition from any Restricted Loan Party of any shares of capital stock or other securities or Equity Interests of any such entity.  All issued and outstanding shares of capital stock or other Equity Interests of each of the Restricted Loan Parties are duly authorized and validly issued, and, if applicable, fully paid, free and clear of all Liens other than those in favor of Agent for the benefit of Agent and the Lenders, and such shares or Equity Interests were issued in compliance with all applicable state and federal laws concerning the issuance of securities. 

4.2 Authorization of Borrowing, No Conflict.  Each Loan Party has the power and authority to incur the Obligations and, if applicable, to grant security interests in the Collateral.  On the Closing Date, the execution, delivery and performance of the Loan Documents by each Loan Party signatory thereto will have been duly authorized by all necessary corporate and shareholder action.  The execution, delivery and performance by each Loan Party of each Loan Document to which it is a party and the consummation of the transactions contemplated by the Loan Documents by each Loan Party do not contravene any applicable law, the Organizational Documents of any Loan Party or any agreement or order by which any Loan Party or any Loan Party’s property is bound the effect of which contravention would reasonably be expected to result in a Material Adverse Effect.  The Loan Documents are the legally valid and binding obligations of the applicable Loan Parties respectively, each enforceable against the Loan Parties, as applicable, in accordance with their respective terms subject to equitable principles and to bankruptcy, insolvency and other laws affecting creditors generally.

4.3 Financial Condition.  All financial statements concerning the Loan Parties furnished by or on behalf of the Loan Parties (or any of them) to Agent or any Lender pursuant to or in connection with this Agreement have been prepared in accordance with GAAP consistently applied throughout the periods involved (except as disclosed therein) and present fairly the financial condition of the Persons covered thereby as at the dates thereof and the results of their operations for the periods then ended.  The Projections delivered by the Borrowers have been and will hereafter be prepared in light of the past operations of the

business of the Borrowers and their Subsidiaries, and such Projections will represent the good faith estimate of each Borrower and its senior management concerning the most probable course of its business as of the date such Projections are delivered, it being understood that no assurance can be given that such Projections will be realized.

4.4 Indebtedness and Liabilities.  As of the Closing Date, no Restricted Loan Party has (a) any Indebtedness except (i) any Indebtedness listed on Schedule 7.1 and (ii) Indebtedness otherwise permitted to be incurred hereunder; or (b) any liabilities other than as reflected on the most recent financial statements delivered to Agent and the Lenders or as incurred in the ordinary course of business following the date of the most recent financial statements delivered to Agent and the Lenders.  

4.5 [Reserved].

4.6 Names and Locations.  As of the Closing Date, Schedule 4.6 sets forth (a) all legal names and all other names (including trade names, fictitious names and business names) under which each Restricted Loan Party currently conducts business, or has at any time during the past five (5) years conducted business, (b) the name of any entity which any Restricted Loan Party has acquired in whole or in part or from whom such Restricted Loan Party has acquired substantially all of assets within the past five years, (c) the location of each Restricted Loan Party’s principal place of business, (d) the state or other jurisdiction of organization for each Restricted Loan Party and sets forth each Restricted Loan Party’s organizational identification number or specifically designates that one does not exist, (e) the location of each Restricted Loan Party’s books and records, (f) the location of all other offices of each Restricted Loan Party material to the business of such Restricted Loan Party, (g) all locations (designating Inventory and Equipment locations and indicating between owned, leased, warehouse, storage, and processor locations) where Collateral with an aggregate value of more than $1,000,000 is located; and (h) each Restricted Loan Party’s federal tax identification number.  As of the Closing Date, the locations designated on Schedule 4.6 are each Restricted Loan Party’s sole material locations for their respective businesses and the material portion of the Collateral. 

4.7 Title to Properties; Liens.  Each Restricted Loan Party has good and marketable title to all of the Collateral and will have good, sufficient and legal title to all after-acquired Collateral, in each case, free and clear of all Liens except for the Permitted Encumbrances.  Agent has valid, perfected and Prior Security Interest in the Collateral (subject to Permitted Encumbrances), securing the payment of the Obligations, and such Liens are entitled to all of the rights, priorities and benefits afforded by the UCC or other applicable laws enacted in any relevant jurisdiction which relates to perfected Liens.

4.8 Litigation; Adverse Facts.  There are no judgments outstanding against any Loan Party or affecting any property of any Loan Party nor is there any action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration now pending or, to the Knowledge of any Loan Party after due inquiry, threatened in writing against or affecting any Loan Party or any property of any Loan Party which would reasonably be expected to result in any Material Adverse Effect. 

4.9 Payment of Taxes.    All material tax returns of the Loan Parties required to be filed by any of them have been timely filed and are complete and accurate in all material respects, except where failure to file would not reasonably be expected to result in a Material Adverse Effect.  All material taxes, assessments, fees and other governmental charges which are due and payable by the Loan Parties have been paid when due; provided that no such tax need be paid if such Loan Party is contesting same in good faith by appropriate proceedings promptly instituted and diligently conducted and if such Loan Party has established appropriate reserves as shall be required in conformity with GAAP.  As of the Closing Date, none of the income tax returns of any Loan Party is under audit.  No tax liens have been filed against any Loan Party (other than liens for taxes that are not yet due or payable or are being contested in good faith by

appropriate proceedings diligently conducted and for which appropriate reserves are maintained on the books of the applicable Loan Party in accordance with GAAP). 

4.10 Performance of Agreements.    None of the Loan Parties and no Subsidiaries of any Restricted Loan Party is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any material contractual obligation of any such Person, and no condition exists that, with the giving of notice or the lapse of time or both, would constitute such a default in each case except where such default would not reasonably be expected to result in a Material Adverse Effect. 

4.11 ERISA Compliance.

(a) Except as could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, (i) each Plan is in compliance with the applicable provisions of ERISA, the IRC and other federal or state Laws and (ii) each Plan that is intended to be a qualified plan under Section 401(a) of the IRC has received a favorable determination letter, or the pre-approved plan sponsor has received an opinion letter on which Borrower may rely, from the IRS to the effect that the form of such Plan is qualified under Section 401(a) of the IRC, or an application for such a letter is currently being processed by the IRS, and, to the Knowledge of the Borrowers, nothing has occurred that would prevent or cause the loss of such tax-qualified status.

(b) There are no pending or, to the Knowledge of the Borrowers, threatened or contemplated claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.  There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that, either individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect.

(c) No ERISA Event has occurred, and neither the Borrowers nor any ERISA Affiliate is aware of any fact, event or circumstance that, either individually or in the aggregate, would reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan that, either individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect.

(d) Except as disclosed in Schedule 4.11(d), the present value of all accrued benefits under each Pension Plan (based on those assumptions used to fund such Pension Plan) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Pension Plan allocable to such accrued benefits by a material amount.  As of the most recent valuation date for each Multiemployer Plan, the potential liability of the Borrowers or any ERISA Affiliate for a complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203 or Section 4205 of ERISA), when aggregated with such potential liability for a complete withdrawal from all Multiemployer Plans, is zero.

(e) To the extent applicable, each Foreign Plan has been maintained in compliance with its terms and with the requirements of any and all applicable requirements of Law and has been maintained, where required, in good standing with applicable regulatory authorities, except to the extent that the failure so to comply could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.  Neither the Borrowers nor any Subsidiary of any Borrower has incurred any material obligation in connection with the termination of or withdrawal from any Foreign Plan that has not been reflected on the financial statements of the applicable Borrower or Subsidiary.  Except as disclosed in Schedule 4.11(e), the present value of the accrued benefit liabilities (whether or not vested) under each Foreign Plan that is funded, determined as of the end of the most recently ended fiscal year of the Borrowers

or Subsidiary of the Borrowers, as applicable, on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the property of such Foreign Plan by a material amount, and for each Foreign Plan that is not funded, the obligations of such Foreign Plan are properly accrued.

4.12 Broker’s Fees. As of the Closing Date no broker’s or finder’s fee or commission will be payable with respect to any of the transactions contemplated hereby.