Common use of Generally Clause in Contracts

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.

Generally. If for The Borrower hereby authorizes the Administrative Agent to disburse the proceeds of any reason any Lender (a “Defaulting Lender”) shall fail Loan made by the Lenders or refuse to perform any of its obligations their Affiliates pursuant to the Loan Documents as requested by an authorized representative of the Borrower to any of the accounts designated in the Transfer Authorizer Designation Form. The Borrower agrees to be bound by any transfer request: (i) authorized or transmitted by the Borrower; or (ii) made in the Borrower’s name and accepted by the Administrative Agent in good faith and in compliance with these transfer instructions, even if not properly authorized by the Borrower. The Borrower further agrees and acknowledges that the Administrative Agent may rely solely on any bank routing number or identifying bank account number or name provided by the Borrower to effect a wire of funds transfer even if the information provided by the Borrower identifies a different bank or account holder than named by the Borrower. The Administrative Agent is not obligated or required in any way to take any actions to detect errors in information provided by the Borrower. If the Administrative Agent takes any actions in an attempt to detect errors in the transmission or content of transfer requests or takes any actions in an attempt to detect unauthorized funds transfer requests, the Borrower agrees that no matter how many times the Administrative Agent takes these actions the Administrative Agent will not in any situation be liable for failing to take or correctly perform these actions in the future and such actions shall not become any part of the transfer disbursement procedures authorized under this Agreement or any other Loan Document to which it is a party within provision, the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, or any right agreement between the Administrative Agent and the Borrower. The Borrower agrees to vote in respect of, to consent to or to direct any action or inaction of notify the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid errors in the transfer of any funds or of any unauthorized or improperly authorized transfer requests within fourteen (14) days after the Administrative Agent’s confirmation to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaulttransfer.

Generally. If for The Borrower hereby authorizes the Administrative Agent to disburse the proceeds of any reason any Lender (a “Defaulting Lender”) shall fail Loan made by the Lenders or refuse to perform any of its obligations their Affiliates pursuant to the Loan Documents as requested by an authorized representative of the Borrower to any of the accounts designated in the Transfer Authorizer Designation Form. The Borrower agrees to be bound by any transfer request: (i) authorized or transmitted by the Borrower; or (ii) made in the Borrower’s name and accepted by the Administrative Agent in good faith and in compliance with these transfer instructions, even if not properly authorized by the Borrower. The Borrower further agrees and acknowledges that the Administrative Agent may rely solely on any bank routing number or identifying bank account number or name provided by the Borrower to effect a wire or funds transfer even if the information provided by the Borrower identifies a different bank or account holder than named by the Borrower. The Administrative Agent is not obligated or required in any way to take any actions to detect errors in information provided by the Borrower. If the Administrative Agent takes any actions in an attempt to detect errors in the transmission or content of transfer requests or takes any actions in an attempt to detect unauthorized funds transfer requests, the Borrower agrees that no matter how many times the Administrative Agent takes these actions the Administrative Agent will not in any situation be liable for failing to take or correctly perform these actions in the future and such actions shall not become any part of the transfer disbursement procedures authorized under this Agreement or any other Loan Document to which it is a party within provision, the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, or any right agreement between the Administrative Agent and the Borrower. The Borrower agrees to vote in respect of, to consent to or to direct any action or inaction of notify the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid errors in the transfer of any funds or of any unauthorized or improperly authorized transfer requests within fourteen (14) days after the Administrative Agent’s confirmation to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaulttransfer.

Generally. If for any reason any Lender (a “"Defaulting Lender”") shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s 's right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s 's Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s 's curing of its default.

Generally. If for Anything contained herein to the contrary notwithstanding, (i) to the extent permitted by applicable Law, until such time as the Default Excess with respect to such Defaulting Lender shall have been reduced to zero, any reason any Lender (a “Defaulting Lender”) shall fail prepayment of the Loans shall, if the Tranche A Borrowers, TCCI or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the Tranche C Borrower, as applicable, so direct at the time period specified for performance of making such obligation orprepayment, if no time period is specified, be applied to the Loans of other Applicable Tranche Lenders as if such failure Defaulting Lender had no Tranche A Loans, Tranche B Loans or refusal continues for a period of two Business Days after notice from the AgentTranche C Loans, thenas applicable, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, outstanding; (ii) such Defaulting Lender’s right unused Aggregate Commitments shall be excluded for purposes of calculating the facility fee payable to participate Lenders pursuant to Section 2.8(a) in respect of any day during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any facility fee with respect to its unused Commitment(s) pursuant to Section 2.8(a) for any Default Period with respect to such Defaulting Lender; and (iii) the administration aggregate amount of the Tranche A Loans, this Agreement Tranche B Loans and the other Loan Documents, including without limitation, Tranche C Loans as at any right to vote in respect of, to consent to or to direct any action or inaction date of the Agent or to be taken into account in the calculation of the Requisite Lenders, determination shall be suspended during the pendency calculated as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender. No Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.17(a), performance by any Borrower or any Lender of its obligations hereunder shall not be excused or otherwise modified as a result of any failure or refusal. If a Lender is by a Defaulting Lender because it has failed to make timely payment to fund or the Agent operation of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periodsthis Section 2.17(a), . The rights and remedies against a Defaulting Lender under this Section 2.17(a) are in addition to other rights and remedies which that the Agent or the Borrower may have under the immediately preceding provisions or otherwiseBorrowers, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit Lender may have against such Defaulting Lender in a court of competent jurisdiction with respect to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultDefaulted Loan.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the such Defaulting Lender’s curing of its default.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail All accounting terms not specifically or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, completely defined herein shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be paid submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, (i) Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470–20 on financial liabilities shall be disregarded, (ii) all liability amounts shall be determined excluding any liability relating to any operating lease, all asset amounts shall be determined excluding any right-of-use assets relating to any operating lease, all amortization amounts shall be determined excluding any amortization of a right-of-use asset relating to any operating lease, and all interest amounts shall be determined excluding any deemed interest comprising a portion of fixed rent payable under any operating lease, in each case to the Agent hereunder extent that such liability, asset, amortization or interest pertains to an operating lease under which the covenantor or a member of its consolidated group is the lessee and would not have been accounted for as such under GAAP as in effect on December 31, 2015, and (iii) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have election under the immediately preceding provisions or otherwise, the Agent shall be entitled FASB ASC Topic 825 “Financial Instruments” (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iiifinancial accounting standard having a similar result or effect) to bring an action value any Indebtedness of the Borrower or suit against such Defaulting Lender in a court any Subsidiary at “fair value”, as defined therein. For purposes of competent jurisdiction determining the amount of any outstanding Indebtedness, no effect shall be given to recover the defaulted amount and any related interest. Any amounts received election by the Agent in respect Borrower to measure an item of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested Indebtedness using fair value (as permitted by the Agent and either applied against the purchase price of such Loans under the following subsection Financial Accounting Standards Board Accounting Standards Codification 825–10–25 (bformerly known as FASB 159) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultany similar accounting standard).

Generally. If for Anything contained herein to the contrary notwithstanding, (i) to the extent permitted by applicable law, until such time as the Default Excess with respect to such Defaulting Lender shall have been reduced to zero, any reason any Lender (a “Defaulting Lender”) shall fail prepayment of the Loans shall, if the Tranche A Borrowers or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within TCCI, as applicable, so direct at the time period specified for performance of making such obligation orprepayment, if no time period is specified, be applied to the Loans of other Applicable Tranche Lenders as if such failure Defaulting Lender had no Tranche A Loans or refusal continues for a period of two Business Days after notice from the AgentTranche B Loans, thenas applicable, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, outstanding; (ii) such Defaulting Lender’s right unused Aggregate Commitments shall be excluded for purposes of calculating the facility fee payable to participate Lenders pursuant to Section 2.8(a) in respect of any day during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any facility fee with respect to its unused Commitment(s) pursuant to Section 2.8(a) for any Default Period with respect to such Defaulting Lender; and (iii) the administration aggregate amount of the Loans, this Agreement Tranche A Loans and the other Loan Documents, including without limitation, Tranche B Loans as at any right to vote in respect of, to consent to or to direct any action or inaction date of the Agent or to be taken into account in the calculation of the Requisite Lenders, determination shall be suspended during the pendency calculated as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender. No Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.17(a), performance by any Borrower or any Lender of its obligations hereunder shall not be excused or otherwise modified as a result of any failure or refusal. If a Lender is by a Defaulting Lender because it has failed to make timely payment to fund or the Agent operation of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periodsthis Section 2.17(a), . The rights and remedies against a Defaulting Lender under this Section 2.17(a) are in addition to other rights and remedies which that the Agent or the Borrower may have under the immediately preceding provisions or otherwiseBorrowers, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit Lender may have against such Defaulting Lender in a court of competent jurisdiction with respect to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultDefaulted Loan.

Generally. If Notwithstanding the provisions of Section 2.4(b)(iv), Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers (or any of them) to Agent for the Defaulting Lender’s benefit or any reason proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A) first, to the Swing Lender to the extent of any Swing Loans that were made by the Swing Lender and that were required to be, but were not, paid by the Defaulting Lender; provided that if any Tranche B Facility exists at such time, Swing Loans shall be treated as Tranche A Revolving Loans unless the outstanding principal amount of Tranche B Revolving Loans is less than the Tranche B Line Cap, in which case up to an amount equal to the Tranche B Line Cap minus the outstanding principal amount of Tranche B Revolving Loans of such Revolving Loans shall be treated as Tranche B Revolving Loans, and the remaining amount of such Revolving Loans shall be treated as Tranche A Revolving Loans, (B) second, to Issuing Banks, to the extent of the portion of a Letter of Credit Disbursement that was required to be, but was not, paid by the Defaulting Lender, (C) third, to each Non-Defaulting Lender ratably in accordance with their Revolver Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of a Revolving Loan (or other funding obligation) was funded by such other Non-Defaulting Lender), (D) to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of the Borrowers (upon the request of Borrowers and subject to the conditions set forth in Section 3.3) as if such Defaulting Lender had made its portion of Revolving Loans (or other funding obligations) hereunder, and (E) from and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (M) of Section 2.4(b)(iv). Subject to the foregoing, Agent may hold and, in its discretion, re-lend to the Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.10(b), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Revolver Commitments shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 14.1(a)(i) through (iv) and (xii). The provisions of this Section 2.3(i) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders, Agent, Issuing Banks, and Borrowers shall have waived, in writing, the application of this Section 2.3(i) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.3(i)(ii) shall be released to the Borrowers). The operation of this Section 2.3(i) shall not be construed to increase or otherwise affect the Revolver Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to Agent, Issuing Banks, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrowers, at their option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (other than Bank Product Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the applicable Letters of Credit); provided, that, subject to Section 18.15, any such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a “Defaulting Lender”) shall fail or refuse to perform waiver of any of its obligations under the Lender Group’s or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.3(i) and any other provision contained in this Agreement or any other Loan Document to which Document, it is a party within the time period specified for performance intention of the parties hereto that such obligation orprovisions be read together and construed, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect offullest extent possible, to consent to or to direct any action or inaction of be in concert with each other. In the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent event of any amount required to actual, irreconcilable conflict that cannot be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwiseresolved as aforesaid, the Agent terms and provisions of this Section 2.3(i) shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff control and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultgovern.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including including, without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made made, at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.

Generally. If for Anything contained herein to the contrary notwithstanding, (i) to the extent permitted by applicable law, until such time as the Default Excess with respect to such Defaulting Lender shall have been reduced to zero, any reason any Lender (a “Defaulting Lender”) shall fail prepayment of the Loans shall, if the Tranche A Borrowers, TCCI or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within TFA, as applicable, so direct at the time period specified for performance of making such obligation orprepayment, if no time period is specified, be applied to the Loans of other Applicable Tranche Lenders as if such failure Defaulting Lender had no Tranche A Loans, Tranche B Loans or refusal continues for a period of two Business Days after notice from the AgentTranche C Loans, thenas applicable, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, outstanding; (ii) such Defaulting Lender’s right unused Aggregate Commitments shall be excluded for purposes of calculating the facility fee payable to participate Lenders pursuant to Section 2.8(a) in respect of any day during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any facility fee with respect to its unused Commitment(s) pursuant to Section 2.8(a) for any Default Period with respect to such Defaulting Lender; and (iii) the administration aggregate amount of the Tranche A Loans, this Agreement Tranche B Loans and the other Loan Documents, including without limitation, Tranche C Loans as at any right to vote in respect of, to consent to or to direct any action or inaction date of the Agent or to be taken into account in the calculation of the Requisite Lenders, determination shall be suspended during the pendency calculated as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender. No Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.17(a), performance by any Borrower or any Lender of its obligations hereunder shall not be excused or otherwise modified as a result of any failure or refusal. If a Lender is by a Defaulting Lender because it has failed to make timely payment to fund or the Agent operation of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periodsthis Section 2.17(a), . The rights and remedies against a Defaulting Lender under this Section 2.17(a) are in addition to other rights and remedies which that the Agent or the Borrower may have under the immediately preceding provisions or otherwiseBorrowers, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit Lender may have against such Defaulting Lender in a court of competent jurisdiction with respect to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultDefaulted Loan.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail All accounting terms not specifically or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, completely defined herein shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be paid submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, (i) Indebtedness of Holdings and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470–20 on financial liabilities shall be disregarded, (ii) all liability amounts shall be determined excluding any liability relating to any operating lease, all asset amounts shall be determined excluding any right-of-use assets relating to any operating lease, all amortization amounts shall be determined excluding any amortization of a right-of-use asset relating to any operating lease, and all interest amounts shall be determined excluding any deemed interest comprising a portion of fixed rent payable under any operating lease, in each case to the Agent hereunder extent that such liability, asset, amortization or interest pertains to an operating lease under which the covenantor or a member of its consolidated group is the lessee and would not have been accounted for as such under GAAP as in effect on December 31, 2015, and (iii) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have election under the immediately preceding provisions or otherwise, the Agent shall be entitled FASB ASC Topic 825 “Financial Instruments” (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iiifinancial accounting standard having a similar result or effect) to bring an action value any Indebtedness of Holdings or suit against such Defaulting Lender in a court any Subsidiary at “fair value”, as defined therein. For purposes of competent jurisdiction to recover determining the defaulted amount and of any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and outstanding Indebtedness, no effect shall be held uninvested given to any election by the Agent and either applied against the purchase price Holdings to measure an item of such Loans under the following subsection Indebtedness using fair value (bas permitted by Financial Accounting Standards Board Accounting Standards Codification 825–10–25 (formerly known as FASB 159) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultany similar accounting standard).

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions this Agreement or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail All accounting terms not specifically or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, completely defined herein shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be paid submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, except (x) as may be required by changes in GAAP or (y) as may be required by IFRS if the Agent hereunder Borrower is required to apply IFRS as provided in Section 1.3(b), in each case subject to Section 1.3(b) below; provided that notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any notice election under Statement of Financial Accounting Standards 159, The Fair Value Option for Financial Assets and Financial Liabilities, or cure periodsany successor thereto (including pursuant to the Accounting Standards Codification), in addition to other rights and remedies which the Agent or value any Indebtedness of the Borrower may have under the immediately preceding provisions or otherwiseany Subsidiary at “fair value”, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, as defined therein and (ii) without giving effect to withhold or setoff and any change to apply in satisfaction GAAP occurring after the Closing Date as a result of the defaulted payment and adoption of any related interestproposals set forth in the Proposed Accounting Standards Update, any amounts otherwise payable to such Defaulting Lender under this Agreement Leases (Topic 840), issued by the Financial Accounting Standards Board on August 17, 2010, or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received proposals issued by the Agent Financial Accounting Standards Board in respect connection therewith, in each case if such change would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or such similar arrangement) was not required to be so treated under GAAP as in effect on the Closing Date. Notwithstanding the foregoing, for purposes of a Defaulting Lender’s Loans shall not be paid all computations of amounts and ratios referred to such Defaulting Lender herein, Indebtedness of the Borrower and its Restricted Subsidiaries shall be held uninvested by deemed to be carried at 100% of the Agent outstanding principal amount thereof, and either applied against the purchase price effects of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultFASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded.

Generally. If for any reason any Lender The Borrower shall have the right to request that the Administrative Agent and the Revolving Lenders agree to extend the Revolving Loan Termination Date by one year (a “Defaulting Revolving Loan Extension”). The Borrower may exercise such right only by executing and delivering to the Administrative Agent not earlier than ninety (90) days prior to the annual anniversary of the Agreement Date, and not later than thirty (30) days prior to the annual anniversary of the Agreement Date (in each case beginning with the second anniversary of the Agreement Date), a written request for such extension (an “Extension Request”); provided, however, such request shall not be made more than once during any such sixty (60) day period. The Administrative Agent shall notify the Revolving Lenders in the event of a Revolving Loan Extension if it receives an Extension Request promptly upon receipt thereof. Subject to satisfaction of the following conditions, the Revolving Loan Termination Date shall be extended for one year effective upon receipt by the Administrative Agent of the Extension Request and payment of the fee referred to in the following clause (iii): (i) sixty-six and two-thirds percent (66 2/3%) of the Lenders shall have notified the Administrative Agent of their acceptance of the Extension Request within twenty (20) days of such Lender”’s receipt of the Extension Request (or such later date as the Administrative Agent may determine); (ii) immediately prior to such extension and immediately after giving effect thereto, (A) no Default or Event of Default shall fail exist and (B) the representations and warranties made or refuse deemed made by the Borrower and each other Loan Party in the Loan Documents to perform which any of its obligations under this Agreement or any other Loan Document to which it them is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lendersparty, shall be suspended during true and correct in all material respects (except in the pendency case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment extension with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; (iii) the Borrower shall have paid the extension Fees to Lenders approving the extension in accordance with Section 3.5(d); and (iv) the Borrower shall have executed such documents and agreements as the Administrative Agent may reasonably request. At any time prior to the effectiveness of any amount required to be paid such extension, upon the Administrative Agent’s request, the Borrower shall deliver to the Administrative Agent hereunder (without giving effect a certificate from the chief executive officer or chief financial officer certifying the matters referred to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the clauses (ii)(A) and (ii)(B). The Administrative Agent shall be entitled promptly notify the Borrower whether a request for an extension has been accepted or rejected as well as which Lender or Lenders rejected such request (each such Lender, a “Rejecting Lender”). The Borrower understands and acknowledges that (i) to collect interest from such Defaulting Lender on such delinquent payment this Section has been included in this Agreement for the period from Borrower’s convenience in requesting an extension of the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, Revolving Loan Termination Date; (ii) to withhold neither the Administrative Agent nor any Lender has promised (either expressly or setoff and to apply in satisfaction of impliedly), nor does the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement Administrative Agent or any other Lender have any obligation or commitment whatsoever, to extend the Revolving Loan Document Termination Date; and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of Lenders may condition any such Loans under the following subsection (b) or paid to extension on such Defaulting Lender upon the Defaulting Lender’s curing of its defaultterms and conditions as they may deem appropriate in their sole and absolute discretion.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in In addition to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable Lawapplicable law, if at any time a Lender is a Defaulting Lender such Defaulting Lender’s 's right to participate in the administration of the Loans, this Agreement and the other Loan Credit Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Required Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Effective Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Credit Document until such defaulted payment and related interest has been paid in full and such default no longer exists and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s 's Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the default of such Defaulting Lender’s curing of its defaultLender being cured.

Generally. If Upon the occurrence of any Event of Default, and at any time thereafter, Lender, at its option, and without notice or demand of any kind (all of which are hereby expressly waived by Borrower) may do any one or more of the following: (a) Cease advancing money or extending credit to or for the benefit of Borrower under this Agreement, and any reason other document or agreement; (b) Accelerate and declare all or any part of the Obligations to be immediately due, payable, and performable, notwithstanding any deferred or installment payments allowed by any instrument evidencing or relating to any Obligation as well as charging the Default Rate on the Obligations above and in addition to any applicable rate hereunder; (c) Take possession of any or all of the Collateral wherever it may be found, and for that purpose Borrower hereby authorizes Lender (a “Defaulting Lender”) shall fail or refuse without judicial process to perform enter onto any of the Borrower's premises without hindrance to search for, take possession of, keep, store, or remove any of the Collateral and remain on such premises or cause a custodian to remain thereon in exclusive control thereof without charge for so long as Lender deems necessary in order to complete the enforcement of its obligations rights under this Agreement or any other Loan Document agreement; provided, however, that should Lender seek to which it is a party within the time period specified for performance take possession of such obligation or, if no time period is specified, if such failure any or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration all of the LoansCollateral by Court process or through a receiver, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled hereby irrevocable waives: (i) any bond and any surety or security relating thereto required by any statute, court rule or otherwise as an incident to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, possession; (ii) any demand for possession prior to withhold the commencement of any suit or setoff and action to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document recover possession thereof; and (iii) any requirement that Lender retain possession of and not dispose of any such Collateral until after trial or final judgment; (d) Require Borrower to bring an action assemble any or suit against all of the Collateral and make it available to Lender at a place or places to be designated by Lender which is reasonably convenient to Lender and Borrower, and to remove the Collateral to such Defaulting locations as Lender may deem advisable; (e) Place a receiver in exclusive control of Borrower’s business and/or any or all of the Collateral, in order to assist Lender in a court enforcing its rights and remedies; (f) Sell, reclaim, lease or otherwise dispose of competent jurisdiction all or any portion of the Collateral in its condition at the time Lender obtains possession or after further manufacturing, processing or repair; at any one or more public and/or private sale(s) (including execution sales); in lots or in bulk; for cash, exchange for other property or on credit; and to recover adjourn any such sale from time to time without notice other than oral announcement at the defaulted amount time scheduled for sale. Lender shall have the right to conduct such disposition on Borrower's premises without charge for such time or times as Lender deems fit, or on Lender's premises, or elsewhere and the Collateral need not be located at the place of disposition. Lender may directly or through any related interestaffiliated company purchase or lease any Collateral at any such public disposition and, if permissible under applicable law, at any private disposition. Any amounts received by the Agent in respect sale or other disposition of a Defaulting Lender’s Loans Collateral shall not relieve Borrower of any liability Borrower may have if any Collateral is defective as to title or physical condition at the time of sale; (g) Demand payment of, and collect any Accounts, Instruments, Chattel Paper, Supporting Obligations and General Intangibles comprising part or all of the Collateral; or (h) Demand and receive possession of any of Borrower's federal and state income tax returns and the books, records and accounts utilized in the preparation thereof or referring thereto. Any and all legal fees, expenses, costs, liabilities and obligations incurred by Lender with respect to the foregoing shall be paid added to such Defaulting Lender and become part of the Obligations and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultdue on demand.

Generally. If for Subject to the conditions in this Section 2.7, at any reason any Lender time and from time to time, Borrower may substitute (each such act is hereafter referred to as a "SUBSTITUTION") a property (a “Defaulting Lender”"SUBSTITUTE PROPERTY") shall fail or refuse to perform any for an Individual Property (a "REPLACED PROPERTY"). From and after the substitution of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, Substitute Property in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Lawaccordance herewith, such Defaulting Lender’s right to participate in the administration of the Loans, Substitute Property shall thereafter be deemed an Individual Property under this Agreement and the other Security Instrument, and the Allocated Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction Amount of such Substitute Property shall be the same as the Allocated Loan Amount of the Agent Replaced Property, except that in the event that two (2) or more Substitute Properties replace a single Replaced Property, then in that event, the Allocated Loan Amount of the Replaced Property shall be apportioned between or amongst the Substitute Properties as Lender in its sole discretion decides. In the event of a substitution, the Note shall remain in full force and effect and a new Security Instrument encumbering the Substitute Property (the "SUBSTITUTE SECURITY INSTRUMENT") shall be executed and delivered by Borrower to Lender to encumber the Substitute Property. Concurrently with the completion of all steps necessary to substitute a Substitute Property as provided herein, Lender shall execute or cause to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of executed all such failure documents as are necessary or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled appropriate (i) to collect interest from such Defaulting release all Liens granted to Lender on such delinquent payment for and affecting the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds RateReplaced Property, and (ii) to withhold cause the Substitute Security Instrument to be cross-collateralized and cross-defaulted with the Security Instrument. Notwithstanding anything to the contrary hereinbefore contained, Borrower's right to substitute a Property as herein provided shall be subject to the additional limitation that at any time the Allocated Loan Amount of such Substitute Property, individually or setoff and to apply in satisfaction when aggregated with the Allocated Loan Amounts of all other Properties which are or were a Substitute Property shall not constitute more than 33 1/3 % of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court original outstanding principal amount of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultLoan.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two (2) Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of all of the Lenders or the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document Document, and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (bSection 3.11(b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default. Subject to the terms of this Agreement (including, without limitation, Section 12.15), the Borrower does not waive any claim that it may have against a Defaulting Lender.

Generally. If for any reason any Lender The Borrower shall have the right to request that the Administrative Agent and the Revolving Lenders agree to extend the Revolving Loan Termination Date by one year (a “Defaulting Revolving Loan Extension”). The Borrower may exercise such right only by executing and delivering to the Administrative Agent not earlier than ninety (90) days prior to the annual anniversary of the Agreement Date, and not later than thirty (30) days prior to the annual anniversary of the Agreement Date (in each case beginning with the second anniversary of the Agreement Date), a written request for such extension (an “Extension Request”); provided, however, such request shall not be made more than once during any such sixty (60) day period. The Administrative Agent shall notify the Revolving Lenders in the event of a Revolving Loan Extension if it receives an Extension Request promptly upon receipt thereof. Subject to satisfaction of the following conditions, the Revolving Loan Termination Date shall be extended for one year effective upon receipt by the Administrative Agent of the Extension Request and payment of the fee referred to in the following clause (iii): (i) the Requisite Lenders shall have notified the Administrative Agent of their acceptance of the Extension Request within twenty (20) days of such Lender”’s receipt of the Extension Request (or such later date as the Administrative Agent may determine); (ii) immediately prior to such extension and immediately after giving effect thereto, (A) no Default or Event of Default shall fail exist and (B) the representations and warranties made or refuse deemed made by the Borrower and each other Loan Party in the Loan Documents to perform which any of its obligations under this Agreement or any other Loan Document to which it them is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lendersparty, shall be suspended during true and correct in all material respects (except in the pendency case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment extension with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; (iii) the Borrower shall have paid the extension Fees to Lenders approving the extension in accordance with Section 3.5(d); and (iv) the Borrower shall have executed such documents and agreements as the Administrative Agent may reasonably request. At any time prior to the effectiveness of any amount required to be paid such extension, upon the Administrative Agent’s request, the Borrower shall deliver to the Administrative Agent hereunder (without giving effect a certificate from the chief executive officer or chief financial officer certifying the matters referred to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the clauses (ii)(A) and (ii)(B). The Administrative Agent shall be entitled promptly notify the Borrower whether a request for an extension has been accepted or rejected as well as which Lender or Lenders rejected such request (each such Lender, a “Rejecting Lender”). The Borrower understands and acknowledges that (i) to collect interest from such Defaulting Lender on such delinquent payment this Section has been included in this Agreement for the period from Borrower’s convenience in requesting an extension of the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, Revolving Loan Termination Date; (ii) to withhold neither the Administrative Agent nor any Lender has promised (either expressly or setoff and to apply in satisfaction of impliedly), nor does the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement Administrative Agent or any other Lender have any obligation or commitment whatsoever, to extend the Revolving Loan Document Termination Date; and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of Lenders may condition any such Loans under the following subsection (b) or paid to extension on such Defaulting Lender upon the Defaulting Lender’s curing of its defaultterms and conditions as they may deem appropriate in their sole and absolute discretion.

Generally. If This is a guaranty of payment and not of collection. The liability of Guarantors under this Guaranty shall be direct and not conditional or contingent upon the pursuit of any remedies against Borrower or any other person (including, without limitation, other guarantors, if any), nor against any collateral which may exist for the Loan. Guarantors waive any reason right to require that an action be brought against Borrower or any other person or to require that resort be had to any collateral for the Loan or to any balance of any deposit account or credit on the books of Administrative Agent or any Lender in favor of Borrower or any other person. In the event, on account of the Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (a “Defaulting Lender”whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, Borrower shall be relieved of or fail to incur any debt, obligation or refuse liability as provided in the Loan Documents, Guarantors shall nevertheless be fully liable therefor. Upon the occurrence and during the continuance of an Event of Default, Administrative Agent and each Lender shall have the right to perform enforce its rights, powers and remedies (including, without limitation, foreclosure of all or any portion of the collateral for the Loan) thereunder or hereunder, in any order, and all rights, powers and remedies available to Administrative Agent and each Lender in such event shall be non-exclusive and cumulative of all other rights, powers and remedies provided thereunder or hereunder or by law or in equity, in each case pursuant to the terms and provisions of the Credit Agreement and other Loan Documents. If the Guaranteed Obligations guaranteed hereby are partially paid or discharged by reason of the exercise of any of its the remedies available to Administrative Agent or any Lender, this Guaranty shall nevertheless remain in full force and effect, and Guarantors shall remain liable for all remaining Guaranteed Obligations, even though any rights which Guarantors may have against Borrower may be destroyed or diminished by the exercise of any such remedy. Guarantors shall be liable for the payment and performance of the Guaranteed Obligations, as set forth in this Guaranty, as a primary obligor. Subject to Section 4, this Guaranty shall be effective as a waiver of, and Guarantors hereby expressly waive, any and all rights to which Guarantors may otherwise have been entitled under any suretyship laws in effect from time to time, including any right or privilege, whether existing under statute, at law or in equity, to require Administrative Agent or any Lender to take prior recourse or proceedings against any collateral, security or Person whomsoever. All payments, whether voluntary or involuntary, received by Administrative Agent or any Lender with respect to the Guaranteed Obligations from any source other than Guarantors, including, without limitation, payments from Borrower or any other guarantor and amounts received from any collateral may, for purposes of determining Guarantors’ obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation orGuaranty, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition be applied to the rights and remedies that may be available to Guaranteed Obligations in such order as the Administrative Agent or shall elect in accordance with the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Credit Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail All accounting terms not specifically or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, completely defined herein shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be paid submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, (i) Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470–20 on financial liabilities shall be disregarded, (ii) all liability amounts shall be determined excluding any liability relating to any operating lease, all asset amounts shall be determined excluding any right-of-use assets relating to any operating lease, all amortization amounts shall be determined excluding any amortization of a right-of-use asset relating to any operating lease, and all interest amounts shall be determined excluding any deemed interest comprising a portion of fixed rent payable under any operating lease, in each case to the Agent hereunder extent that such liability, asset, amortization or interest pertains to an operating lease under which the covenantor or a member of its consolidated group is the lessee and would not have been accounted for as such under GAAP as in effect on December 31, 2015, and (iii) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have election under the immediately preceding provisions or otherwise, the Agent shall be entitled FASB ASC Topic 825 “Financial Instruments” (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iiifinancial accounting standard having a similar result or effect) to bring an action value any Indebtedness of the Borrower or suit against such Defaulting Lender in a court any Subsidiary at “fair value”, as defined therein. For purposes of competent jurisdiction determining the amount of any outstanding Indebtedness, no effect shall be given to recover the defaulted amount and (x) any related interest. Any amounts received election by the Agent Borrower to measure an item of Indebtedness using fair value (as permitted by Financial Accounting Standards Board Accounting Standards Codification 825–10–25 (formerly known as FASB 159) or any similar accounting standard) or (y) any change in respect accounting for leases pursuant to GAAP resulting from the implementation of Financial Accounting Standards Board ASU No. 2016–02, Leases (Topic 842), to the extent such adoption or change would require recognition of a Defaulting Lender’s Loans shall lease liability where such lease (or similar arrangement) would not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans have required a lease liability under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultGAAP as in effect on December 31, 2015.

Generally. If Lessee will not directly or indirectly create, or permit the creation of, any mortgage, lien, security interest, encumbrance or charge on, pledge of or conditional sale or other title retention agreement with respect to the Premises or any part thereof, other than (a) this Lease and ancillary rights in favor of third parties as permitted herein; (b) a Leasehold Mortgage which is permitted under the terms of Section 21; (c) liens for Impositions not yet payable, or payable without the addition of any reason fine, penalty, interest or cost for nonpayment, or being contested as permitted by Section 12; (d) Permitted Exceptions; and (e) Unpermitted Liens, incurred in the ordinary course of business for sums which under the terms of the related contracts are not at the time due if adequate provision for the payment thereof shall have been made by Lessee. Lessee will provide Lessor with prompt written notice of any Lender lien or notice of lien placed against the Premises, and Lessee will promptly thereafter remove and discharge any mortgage, lien, security interest, encumbrance or charge created by Lessee (or by any third party as a “Defaulting Lender”result of Lessee’s conduct) in violation of the preceding sentence. In the event that Lessee’s leasehold interest under the Lease is encumbered by a Leasehold Mortgage pursuant to the provisions of Section 21, Lessee shall fail (i) use commercially reasonable efforts to cause any Leasehold Mortgagee to provide to Lessor copies of any notices from such Leasehold Mortgagee alleging any non-compliance, breach or refuse default by Lessee in respect of such Leasehold Mortgage (provided that Lessee shall be deemed to perform satisfy the requirements of this clause (i) if Lessee delivers to such Leasehold Mortgagee a written request to provide such notices to Lessor; and (ii) within ten (10) days after receipt of any such notice from Leasehold Mortgagee, provide to Lessor a copy of any such notice from such Leasehold Mortgagee alleging any non-compliance, breach or default under any of its obligations under the loan documents regarding such Leasehold Mortgage (provided that so long as Lessor receives such notice pursuant to either clause (i) or (ii) above, Lessee shall be deemed to satisfy the requirements of this Agreement or any other Loan Document clause). Notwithstanding anything to which it is a party within the time period specified contrary contained in this Section 11, Lessee may enter into fixture financing arrangements for performance of fixtures and equipment located on the Property, and Lessor agrees that Lessor’s claims to such obligation orfixtures and equipment, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lendersany, shall be suspended during subordinate to any such fixture financing arrangements so long as such arrangements do not encumber Lessor’s interest in the pendency of such failure or refusalPremises. If a Lender is a Defaulting Lender because it has failed Lessee fails to make timely payment to the Agent remove, discharge or bond over any lien not otherwise described in (a) through (e) above including without limitation any Unpermitted Lien within thirty (30) days of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied its being placed against the purchase price of Property, Lessor may do so, and Lessee shall reimburse Lessor for all costs incurred by Lessor in connection with removing such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultlien.

Generally. If for any reason any Subject to the terms and conditions hereof, as part of the Revolving Credit, the U.S. Borrower may request from the Swing Line Lender loans in U.S. Dollars (each individually a “Defaulting LenderSwing Loan” and collectively the “Swing Loans”) ), and the Swing Line Lender shall fail or refuse to perform any of its obligations under this Agreement or any other make a Swing Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the U.S. Borrower under this Agreement or Applicable Law, the Swing Line upon such Defaulting Lender’s right to participate in request; provided that (x) the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to Swing Line Lender shall not be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed obligated to make timely payment to a Swing Loan if (i) at such time, the Agent of any amount required to be paid to conditions precedent set forth in Section 7.1 hereof have not been satisfied or waived in accordance with the Agent hereunder terms hereof, (without ii) after giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwisesuch Swing Loan, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for aggregate dollar amount of all Swing Loans then outstanding exceeds the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds RateSwing Line Sublimit, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) after giving effect thereto, the aggregate outstanding principal amount of Loans and L/C Obligations would exceed the Revolving Credit Commitments and (iv) after giving effect thereto, the aggregate outstanding principal amount of Revolving Loans, interests in Swing Loans and interests in L/C Obligations of any Lender would exceed the Revolving Credit Commitments of such Lender and (y) the U.S. Borrower shall not use the proceeds of any Swing Loan to bring an action or suit against such Defaulting Lender refinance any outstanding Swing Loans. Subject to the foregoing, Swing Loans may be availed of from time to time and borrowings thereunder may be repaid and used again during the period ending on the Revolving Credit Termination Date. Each Swing Loan issued shall constitute a dollar-for-dollar usage by the U.S. Borrower of the aggregate Revolving Credit Commitments of all Lenders. Each Swing Loan requested by a Borrower shall be in a court minimum amount of competent jurisdiction to recover $250,000 or such greater amount which is an integral multiple of $50,000. Immediately upon the defaulted amount and any related interest. Any amounts received by the Agent in respect making of a Defaulting Swing Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Loan in an amount equal to the product of such Lender’s Loans Revolver Percentage times the amount of such Swing Loan. Notwithstanding anything contained herein to the contrary, the Swing Line Lender shall not be paid under an obligation to make a Swing Loan if a default of any Lender’s obligations to fund under (d) or (e) below exists or any Lender is at such time a Defaulting Lender hereunder, unless the Swing Line Lender has entered into arrangements with the U.S. Borrower or such Lender satisfactory to the Swing Line Lender to eliminate the Swing Line Lender’s risk with respect to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.

Generally. If for any reason any Lender (a “"Defaulting Lender”") shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two (2) Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s 's right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of all of the Lenders or the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document Document, and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s 's Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (bSection 3.11(b) or paid to such Defaulting Lender upon the Defaulting Lender’s 's curing of its default.

Generally. If for Notwithstanding anything in any reason Credit Document to the contrary, so long as (i) no Default or Event of Default has occurred and is continuing on both the date a Discounted Prepayment Notice (as defined below) is delivered to the Administrative Agent and Lenders and the date a Discounted Prepayment (as defined below) is made (both before and after giving effect thereto), (ii) all parties to such transaction render a Big Boy Letter and (iii) no proceeds of Revolving Loans are used to make any Lender such Discounted Prepayment, the Borrower or other Credit Party (in such capacity, the “Discounted Prepayment Offeror”) will be permitted to (A) offer to make voluntary prepayments of the Term Loans (each, a “Defaulting LenderDiscounted Prepayment”) shall fail on one or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition more occasions pursuant to the rights provisions of this Section 2.25, and remedies that may be available (B) make such Discounted Prepayment on one or more occasions pursuant to the Agent or the Borrower under provisions of this Agreement or Applicable LawSection 2.25 (it being understood that no Lender will have an obligation to accept a Discounted Prepayment). As used herein, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If “Big Boy Letter” means a letter from a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder acknowledging that (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or 1) the Borrower may have under information regarding the immediately preceding provisions or otherwiseBorrower and the Subsidiaries, their ability to perform the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement Obligations or any other Loan Document material information that has not previously been disclosed to the Administrative Agent and the Lenders (“Excluded Information”), (2) the Excluded Information may not be available to such Lender, (3) such Lender has independently and without reliance on any other party made its own analysis and determined to assign Term Loans to the Borrower pursuant to this Section 2.25 notwithstanding its lack of knowledge of the Excluded Information and (iii4) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount waives and releases any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied claims it may have against the purchase price Administrative Agent, the Borrower and the Subsidiaries with respect to the nondisclosure of the Excluded Information; or otherwise in form and substance reasonably satisfactory to the Administrative Agent, the Borrower and assigning such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.

Generally. If for any reason any Lender (shall become a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, then such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect ofof any amendment, to consent to or waiver of the terms of this Agreement or any other Loan Document, or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Lenders, Lenders shall be suspended during while such Lender remains a Defaulting Lender; provided, however, that the pendency foregoing shall not permit (i) a decrease in the principal amount of such failure Lender’s Loan or refusal(ii) an extension of the maturity date of such Lender’s Loan or other Obligations owing to such Lender, without such Lender’s consent. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which then the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received No Loan of any Lender shall be increased or otherwise affected, and except as otherwise expressly provided in this Section, performance by the Agent in respect Borrower of a Defaulting Lender’s Loans its obligations hereunder and under the other Loan Documents shall not be paid excused or otherwise modified, as a result of the operation of this Section. The rights and remedies of the Borrower, the Administrative Agent and the Lenders against a Defaulting Lender under this Section are in addition to any other rights and remedies the Borrower, the Administrative Agent and the Lenders may have against such Defaulting Lender and shall be held uninvested by under this Agreement, any of the Agent and either applied against the purchase price of such Loans under the following subsection (b) other Loan Documents, Applicable Law or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultotherwise.

Generally. If Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with any Loan Party or any Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing by the Required Lenders, and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any reason information relating to any Lender (a “Defaulting Lender”) shall fail Loan Party or refuse to perform any of its obligations under Affiliates that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other Loan Document to which it is a party within agreement, instrument or document, or (v) the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent satisfaction of any amount condition set forth in Article 4 or elsewhere herein, other than to confirm receipt of items expressly required to be paid delivered to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent. The Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment rely upon, and shall not incur any liability for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Raterelying upon, (ii) any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to withhold or setoff be genuine and to apply have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for any Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in satisfaction accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the defaulted payment preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any related interestsuch sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any amounts otherwise time by notifying the Lenders and the Borrowers. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrowers, to appoint a successor, which successor shall be approved by the Borrowers (which approval shall not be unreasonably withheld or delayed). If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank reasonably acceptable to the Borrowers. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. Any fees payable by the Borrowers to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrowers and such Defaulting successor. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 9.3 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent. Each Lender under this Agreement acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Loan Document Lender and (iii) based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to bring an enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and based upon this Agreement, any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) agreement or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultany document furnished hereunder or thereunder.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Administrative Agent, then, in addition to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement Agreement, and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to to, or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, and (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interestDocument. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default. Borrower shall not have any liability in respect of such action by Administrative Agent.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under Except as otherwise provided in this Agreement Section 16.1, all payments made by Borrower hereunder or any other Loan Document to which it will be made free and clear of, and without deduction or withholding for, any Taxes, except as required by applicable law. In the event any deduction or withholding of Taxes is a party within the time period specified for performance of such obligation orrequired by applicable law, if no time period is specified, (a) if such failure Taxes are Indemnified Taxes, the sum payable to Lenders shall be increased as may be necessary so that after making all required deductions or refusal continues withholding for a period of two Business Days after notice from the AgentIndemnified Taxes, then, in addition Lenders receive an amount equal to the rights sum they would have received had no such deductions or withholding been made, provided that Borrower shall not be required to increase any such amounts payable to Lenders if the increase in such amount payable results from Agent’s or such Lender’s own willful misconduct or gross negligence (as finally determined by a court of competent jurisdiction); (b) if such Taxes are Excluded Taxes, the sum payable to Lenders shall not be increased, (c) Borrower or Agent shall make such deductions or withholding and remedies that may the amount deducted or withheld shall be available treated as paid to the Agent or the Borrower relevant Lender for all purposes under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitationand (d) Borrower will furnish to Agent as soon as practicable after the date the payment of any such Indemnified Tax is due to a Governmental Authority pursuant to applicable law, certified copies of tax receipts evidencing such payment by Borrower. Borrower agrees to pay any right to vote in respect present or future stamp, value added or documentary Taxes or any other excise or property Taxes that arise from any payment made hereunder or from the execution, delivery, performance, recordation, or filing of, or otherwise with respect to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Document. For the purposes of this Section 16, the term “Lender in shall include a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultParticipant.

Generally. If (i) Except in the case of circumstances described in Section 3.03(b), if for any reason in connection with any Lender request for a Eurodollar Rate Loan or a conversion to or continuation thereof, (a “Defaulting Lender”A) shall fail or refuse the Administrative Agent determines that (1) Dollar deposits are not being offered to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within banks in the time period specified London interbank Eurodollar market for performance the applicable amount and Interest Period of such obligation orEurodollar Rate Loan, if no time period is specifiedor (2) adequate and reasonable means do not exist for determining the Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan (in each case with respect to clause (a)(i) above, if such failure “Impacted Loans”), or refusal continues for a period of two Business Days after notice from (B) the Agent, then, in addition to the rights and remedies that may be available to the Agent Required Lenders or the Administrative Agent determine that for any reason the Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower under this Agreement or Applicable Lawand each Lender, such Defaulting Lender’s right to participate in then thereafter, (x) the administration obligation of the Loans, this Agreement and the other Loan Documents, including without limitation, any right Lenders to vote in respect of, to consent to make or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, maintain Eurodollar Rate Loans shall be suspended during (to the pendency extent of the affected Eurodollar Base Rate Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods)notice, in addition to other rights and remedies which the Agent or the Borrower may have under revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction extent of the defaulted payment and any related interestaffected Eurodollar Base Rate Loans or Interest Periods) or, any amounts otherwise payable failing that, will be deemed to have converted such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender request into a request for a Committed Borrowing of Base Rate Loans in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultspecified therein.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in In addition to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable Lawapplicable law, if at any time a Lender is a Defaulting Lender such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Credit Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Required Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Effective Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Credit Document until such defaulted payment and related interest has been paid in full and such default no longer exists and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the default of such Defaulting Lender’s curing of its defaultLender being cured.

Generally. If All payments hereunder and under any other Credit Document shall be made by the Borrower without condition or deduction for any reason counterclaim, defense, recoupment or setoff of any Lender (kind. Except as otherwise specifically provided herein, all payments made by a “Defaulting Lender”) Credit Party hereunder shall fail or refuse be made to perform the Administrative Agent in Dollars in Same Day Funds, at the Administrative Agent’s office specified in Section 11.1. Without limiting the generality of the foregoing, the Administrative Agent may require that any of its obligations payments due under this Agreement be made in the United States. All payments shall be received by the Administrative Agent not later than 2:00 P.M. (Charlotte, North Carolina time) on the date when due in the case of payments in Dollars. Payments received after such time shall be deemed to have been received on the next succeeding Business Day. The Administrative Agent may (but shall not be obligated to) debit the amount of any such payment which is not made by such time to any ordinary deposit account of the Borrower or any other Loan Document Credit Party maintained with the Administrative Agent (with notice to which it is a party within the Borrower or such other Credit Party). The Borrower shall, at the time period specified for performance of such obligation orit makes any payment under this Credit Agreement, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition specify to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and LOC Obligations, Fees, interest or other amounts payable by the other Loan Documents, including without limitation, any right Borrower hereunder to vote in respect of, to consent to or to direct any action or inaction of the Agent or which such payment is to be taken into account applied (and in the calculation of event that it fails so to specify, or if such application would be inconsistent with the Requisite Lendersterms hereof, the Administrative Agent shall be suspended during the pendency of distribute such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Lenders in such manner as the Administrative Agent of any amount required may determine to be paid appropriate in respect of obligations owing by the Borrower hereunder, subject to the terms of Section 3.13(a)). The Administrative Agent will distribute such payments to such Lenders, if any such payment is received prior to 2:00 P.M. (Charlotte, North Carolina time) on a Business Day in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent will distribute such payment to such Lenders on the next succeeding Business Day. Whenever any payment hereunder (without giving effect shall be stated to any notice or cure periods), in addition to other rights and remedies be due on a day which the Agent or the Borrower may have under the immediately preceding provisions or otherwiseis not a Business Day, the Agent due date thereof shall be entitled extended to the next succeeding Business Day (i) subject to collect accrual of interest from such Defaulting Lender on such delinquent payment and Fees for the period of such extension), except that in the case of Eurocurrency Rate Loans, if the extension would cause the payment to be made in the next following calendar month, then such payment shall instead be made on the next preceding Business Day. Except as expressly provided otherwise herein, all computations of interest and fees shall be made on the basis of actual number of days elapsed over a year of 360 days, except with respect to computation of interest on Base Rate Loans, which shall be calculated based on a year of 365 or 366 days, as appropriate. Interest shall accrue from and include the date on which the payment was due until of borrowing, but exclude the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultpayment.

Generally. If Except as otherwise provided in this Agreement, the following procedures shall be applicable with respect to indemnification for third party Claims. Promptly after receipt by the party seeking indemnification hereunder (hereinafter referred to as the "INDEMNITEE") of notice of the commencement of any reason action or the assertion of any Lender Claim, liability or obligation by a third party (a “Defaulting Lender”whether by legal process or otherwise), against which Claim, liability or obligation another party to this Agreement (hereinafter the "INDEMNITOR") shall fail is, or refuse to perform any of its obligations may be, required under this Agreement to indemnify such Indemnitee, the Indemnitee shall, if a claim thereon is to be, or any other Loan Document to which it is may be, made against the Indemnitor, immediately notify the Indemnitor in writing of the commencement or assertion thereof and give the Indemnitor a party within the time period specified for performance copy of such Claim or process and all legal pleadings. The Indemnitee's failure to give timely notice as required by this Section 11.4(a) shall not serve to eliminate or limit the Indemnitor's obligation or, if no time period is specified, if to indemnify the Indemnitee unless such failure prejudices the rights of the Indemnitor, and then only to the extent of such prejudice. Moreover, the Indemnitee shall have the right to take any actions or refusal continues for a period steps it deems reasonable to avoid the occurrence of two Business Days after notice from the Agent, then, in addition any prejudice to the rights of the Indemnitee. The Indemnitor shall have the right to assume the defense of such action with counsel of reputable standing unless with respect to such action (A) injunctive or equitable remedies have been sought therein in respect of the Indemnitee or its business or (B) such action is for an alleged amount of less than Five Thousand Dollars ($5,000); PROVIDED, that the Indemnitee and remedies that may be available counsel to the Agent or Indemnitee shall have the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration defense of any and all Claims pursuant to the provisions of Section 11.4(b) hereof. The Indemnitor and the Indemnitee shall reasonably cooperate in the defense of such Claims. If the Indemnitee shall be required by judgment or a settlement agreement to pay any amount in respect of any obligation or liability against which the Indemnitor has agreed to indemnify the Indemnitee under this Agreement, the Indemnitor shall immediately pay such amount to the Indemnitee in order to enable the Indemnitee to make such payment, and otherwise shall promptly reimburse the Indemnitee in an amount equal to the amount of such payment, in either case, plus all reasonable out-of-pocket expenses (including legal fees and expenses) incurred by such Indemnitee at the specific request of the LoansIndemnitor, as provided above, or as otherwise authorized by Section 11.4(b) hereof, in connection with such obligation or liability subject to this Agreement and Article XI. No Indemnitor, in the other Loan Documentsdefense of any such Claim, including without limitationshall, except with the consent of the Indemnitee, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee of a release from all liability with respect to such Claim. In the event that the Indemnitor does not accept the defense of any matter for which it is entitled to assume such defense as provided in this Section 11.4(a), the Indemnitee shall have the full right to vote in respect of, to consent to or to direct defend against any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights Claim and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from settle or agree to pay in full such Defaulting Lender on such delinquent payment for the period from the date on Claim in its sole discretion. With respect to any matter as to which the payment was due until Indemnitor is not entitled to assume the date on defense pursuant to the terms of this Section 11.4(a), the Indemnitee shall not enter into any settlement for which an indemnification Claim will be made hereunder without the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction approval of the defaulted payment and any related interestIndemnitor, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans which shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultunreasonably withheld.

Generally. If for Anything contained herein to the contrary notwithstanding, (i) to the extent permitted by applicable Law, until such time as the Default Excess with respect to such Defaulting Lender shall have been reduced to zero, any reason any Lender (a “Defaulting Lender”) shall fail prepayment of the Loans shall, if the Tranche A Borrowers, TCCI or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within TFA, as applicable, so direct at the time period specified for performance of making such obligation orprepayment, if no time period is specified, be applied to the Loans of other Applicable Tranche Lenders as if such failure Defaulting Lender had no Tranche A Loans, Tranche B Loans or refusal continues for a period of two Business Days after notice from the AgentTranche C Loans, thenas applicable, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, outstanding; (ii) such Defaulting Lender’s right unused Aggregate Commitments shall be excluded for purposes of calculating the facility fee payable to participate Lenders pursuant to Section 2.8(a) in respect of any day during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any facility fee with respect to its unused Commitment(s) pursuant to Section 2.8(a) for any Default Period with respect to such Defaulting Lender; and (iii) the administration aggregate amount of the Tranche A Loans, this Agreement Tranche B Loans and the other Loan Documents, including without limitation, Tranche C Loans as at any right to vote in respect of, to consent to or to direct any action or inaction date of the Agent or to be taken into account in the calculation of the Requisite Lenders, determination shall be suspended during the pendency calculated as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender. No Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.17(a), performance by any Borrower or any Lender of its obligations hereunder shall not be excused or otherwise modified as a result of any failure or refusal. If a Lender is by a Defaulting Lender because it has failed to make timely payment to fund or the Agent operation of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periodsthis Section 2.17(a), . The rights and remedies against a Defaulting Lender under this Section 2.17(a) are in addition to other rights and remedies which that the Agent or the Borrower may have under the immediately preceding provisions or otherwiseBorrowers, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit Lender may have against such Defaulting Lender in a court of competent jurisdiction with respect to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultDefaulted Loan.

Generally. (i) If in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof, (A) the Administrative Agent determines that (1) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, or (2) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan (in each case with respect to clause (a)(i)(A), “Impacted Loans”), or (B) the Administrative Agent or the Required Lenders determine that for any reason Eurodollar Rate for any Lender (requested Interest Period with respect to a “Defaulting Lender”) shall fail or refuse proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to perform any such Lenders of its obligations under this Agreement or any other Loan Document to which it is a party within funding such Loan, the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Administrative Agent or will promptly so notify the Borrower under this Agreement or Applicable Lawand each Lender. Thereafter, such Defaulting Lender’s right to participate in (x) the administration obligation of the Loans, this Agreement and the other Loan Documents, including without limitation, any right Lenders to vote in respect of, to consent to make or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, maintain Eurodollar Rate Loans shall be suspended during (to the pendency extent of the affected Eurodollar Rate Loans or Interest Periods), and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods)notice, in addition to other rights and remedies which the Agent or the Borrower may have under revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction extent of the defaulted payment and any related interestaffected Eurodollar Rate Loans or Interest Periods) or, any amounts otherwise payable failing that, will be deemed to have converted such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender request into a request for a Borrowing of Base Rate Loans in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultspecified therein.

Generally. Each Option granted under this Plan shall be evidenced by an Award agreement (whether in paper or electronic medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each Option so granted shall be subject to the conditions set forth in this Section 7, and to such other conditions not inconsistent with this Plan as may be reflected in the applicable Award agreement. All Options granted under this Plan shall be Nonqualified Stock Options unless the applicable Award agreement expressly states that the Option is intended to be an Incentive Stock Option. Nonqualified Stock Options shall be granted only to Eligible Persons who are current or prospective employees, directors, consultants or advisors of the Company and its Subsidiaries. Incentive Stock Options shall be granted only to Eligible Persons who are employees of the Company and its Related Companies, and no Incentive Stock Option shall be granted to any Eligible Person who is ineligible to receive an Incentive Stock Option under the Code. No Option shall be treated as an Incentive Stock Option unless this Plan has been approved by the stockholders of the Company in a manner intended to comply with the stockholder approval requirements of Section 422(b)(1) of the Code, provided that any Option intended to be an Incentive Stock Option shall not fail to be effective solely on account of a failure to obtain such approval, but rather such Option shall be treated as a Nonqualified Stock Option unless and until such approval is obtained. In the case of an Incentive Stock Option, the terms and conditions of such grant shall be subject to and comply with such rules as may be prescribed by Section 422 of the Code. If for any reason any Lender an Option intended to be an Incentive Stock Option (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agentportion thereof) does not qualify as an Incentive Stock Option, then, in addition to the rights and remedies that may extent of such nonqualification, such Option or portion thereof shall be available to the Agent or the Borrower regarded as a Nonqualified Stock Option appropriately granted under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultPlan.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or generally under any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower Borrowers under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Required Lenders, shall be suspended during the pendency of such failure or refusal, but such Defaulting Lender shall retain its approval rights with respect to any matters set forth in Sections 12.6(b)(i) and (iv) below. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower Borrowers may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document Note, and (iii) to bring an action or suit against such Defaulting Lender in a any state court located in the Borough of competent jurisdiction Manhattan, New York, New York or any federal court located in the Southern District of New York to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the such Defaulting Lender’s curing of its default. A Defaulting Lender’s rights to fully participate in Lender decision-making and to fully participate in payments due from Borrower shall be restored only upon the payment by such Defaulting Lender of the amounts as to which it is delinquent.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in In addition to the rights and remedies that may be available to the Administrative Agent or the Borrower Borrowers under this Agreement or Applicable Lawapplicable law, if at any time a Lender is a Defaulting Lender such Defaulting Lender’s 's right to participate in the administration of the Loans, this Agreement and the other Loan Credit Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Required Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower Borrowers may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Effective Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Credit Document until such defaulted payment and related interest has been paid in full and such default no longer exists and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s 's Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the default of such Defaulting Lender’s curing of its defaultLender being cured.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two (2) Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions this Agreement or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.

Generally. If The Warrant Certificates shall be issued in registered form only. The Company shall cause to be kept at the office of the Warrant Agent a register in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of the transfers or exchanges of the Warrant Certificates as herein provided. Notwithstanding anything to the contrary contained herein, the Initial Holder may not assign, sell or otherwise transfer Warrants at any time before the Transfer Restriction Termination Date. The Warrant Agent shall from time to time register the transfer or exchange of any outstanding Warrant, in the records to be maintained by it for that purpose, upon surrender of such Warrant. Upon any such registration of transfer or exchange, a new Warrant Certificate shall be issued to the transferee in the case of a transfer or to the Holder making the exchange, and the surrendered Warrant Certificate shall be canceled by the Warrant Agent. Canceled Warrant Certificates shall be disposed of by the Warrant Agent in accordance with its customary procedures and the Warrant Agent shall deliver a certificate of their destruction to the Company. All Warrant Certificates issued upon any registration of transfer or exchange shall be valid obligations of the Company, evidencing the same obligations, and entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered for such registration of transfer or exchange. Every Warrant Certificate surrendered for registration of transfer or exchange shall (if so required by the Company or the Warrant Agent) be duly endorsed, or be accompanied by a written instrument of transfer in form contained in Exhibit B hereto or such other form satisfactory to the Company and the Warrant Agent, duly executed by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made to a Holder for any reason registration of transfer or exchange of the Warrant Certificates. The Company may require payment of a sum sufficient to cover any Lender (a “Defaulting Lender”) shall fail tax or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies governmental charge that may be available imposed in connection with any registration of transfer or exchange of the Warrant Certificates. Any Warrant Certificate when duly endorsed in blank shall be deemed negotiable and when any Warrant Certificate shall have been so endorsed, the Holder thereof may be treated by the Company, the Warrant Agent and all other persons dealing therewith as the absolute owner thereof for any purpose and as the Person entitled to either exercise the rights represented thereby or to transfer the Warrants represented thereby on the register of the Company maintained by the Warrant Agent, any notice to the Agent or contrary withstanding; but until such transfer on such register, the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement Company and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of Warrant Agent may treat the Agent or to be taken into account in registered Holder thereof as the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment owner for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultall purposes.

Generally. If The Warrant Certificates shall be issued in registered form only. The Company shall cause to be kept at the office of the Warrant Agent a register in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of the transfers or exchanges of the Warrant Certificates as herein provided. The Warrant Agent shall from time to time register the transfer or exchange of any outstanding Warrant, in the records to be maintained by it for that purpose, upon surrender of such Warrant. Upon any such registration of transfer or exchange, a new Warrant Certificate shall be issued to the transferee in the case of a transfer or to the Holder making the exchange, and the surrendered Warrant Certificate shall be canceled by the Warrant Agent. Canceled Warrant Certificates shall be disposed of by the Warrant Agent in accordance with its customary procedures and the Warrant Agent shall deliver a certificate of their destruction to the Company. All Warrant Certificates issued upon any registration of transfer or exchange shall be valid obligations of the Company, evidencing the same obligations, and entitled to the same benefits under this Agreement, as the Warrant Certificates surrendered for such registration of transfer or exchange. Every Warrant Certificate surrendered for registration of transfer or exchange shall (if so required by the Company or the Warrant Agent) be duly endorsed, or be accompanied by a written instrument of transfer in form contained in Exhibit B hereto or such other form satisfactory to the Company and the Warrant Agent, duly executed by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made to a Holder for any reason registration of transfer or exchange of the Warrant Certificates. The Company may require payment of a sum sufficient to cover any Lender (a “Defaulting Lender”) shall fail tax or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies governmental charge that may be available imposed in connection with any registration of transfer or exchange of the Warrant Certificates. Any Warrant Certificate when duly endorsed in blank shall be deemed negotiable and when any Warrant Certificate shall have been so endorsed, the Holder thereof may be treated by the Company, the Warrant Agent and all other persons dealing therewith as the absolute owner thereof for any purpose and as the Person entitled to either exercise the rights represented thereby or to transfer the Warrants represented thereby on the register of the Company maintained by the Warrant Agent, any notice to the Agent or contrary withstanding; but until such transfer on such register, the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement Company and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of Warrant Agent may treat the Agent or to be taken into account in registered Holder thereof as the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment owner for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultall purposes.

Generally. If Subject to Section 4.6, the Company hereby agrees to indemnify and hold harmless each Manager (an “Indemnified Person”) to the fullest extent permitted under the Delaware Act, as the same now exists or may hereafter be amended, substituted or replaced (but, in the case of any such amendment, substitution or replacement only to the extent that such amendment, substitution or replacement permits the Company to provide broader indemnification rights than the Company is providing immediately prior to such amendment), against all expenses, liabilities and losses (including attorneys’ fees, judgments, fines or penalties) reasonably incurred or suffered by such Indemnified Person (or one or more of such Indemnified Person’s Affiliates) by reason of the fact that such Indemnified Person is or was a Member, appointed or elected as a Manager, or serving as a managing member, manager, officer, principal, member, employee, agent or representative of the Company or any Subsidiary or is or was serving at the request of the Company as a managing member, manager, officer, director, principal, member, employee, agent or representative of another Entity; provided, that no Indemnified Person shall be indemnified for any reason any Lender expenses, liabilities and losses suffered that are attributable to such Indemnified Person’s or its Affiliates’ (a the term “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified Affiliates” excluding, for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwisepurposes hereof, the Agent shall be entitled (iCompany and its Subsidiaries) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rategross negligence, (ii) to withhold willful misconduct or setoff and to apply in satisfaction knowing violation of the defaulted payment and any related interestlaw as determined by a final judgment, any amounts otherwise payable to such Defaulting Lender under this Agreement order or any other Loan Document and (iii) to bring decree of an action arbitrator or suit against such Defaulting Lender in a court of competent jurisdiction (which is not appealable or with respect to recover which the defaulted amount time for appeal therefrom has expired and no appeal has been perfected). Expenses, including attorneys’ fees and expenses, incurred by any related interest. Any amounts received such Indemnified Person in defending a proceeding shall be paid by the Agent Company in respect advance of a Defaulting Lender’s Loans the final disposition of such proceeding, including any appeal therefrom, upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be paid to such Defaulting Lender and shall be held uninvested indemnified by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultCompany.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusalrefusal (except that the Commitment of a Defaulting Lender may not be increased or extended without its prior written consent). If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender (provided that the Borrower shall be deemed to have made payment to such Defaulting Lender of such amount) and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the such Defaulting Lender’s curing of its default.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in In addition to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable Lawapplicable law, if at any time a Lender is a Defaulting Lender such Defaulting Lender’s right to participate in the administration of the Revolving Loans, this Agreement and the other Loan Credit Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Required Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Effective Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Credit Document until such defaulted payment and related interest has been paid in full and such default no longer exists and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s Revolving Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Revolving Loans under the following subsection (b) or paid to such Defaulting Lender upon the default of such Defaulting Lender’s curing of its defaultLender being cured.

Generally. If for Xxxxxxx will defend, indemnify and hold Customer harmless against any reason claim brought by a third party to the extent it alleges that the Customer Managed Software or the Cloud Service directly infringes any Lender United States patent, copyright or trademark, or misappropriates any trade secret, of that third party (a “Defaulting LenderClaim”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwisewill pay all costs, the Agent shall be entitled damages and expenses (iincluding reasonable legal fees) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit finally awarded against such Defaulting Lender in Customer by a court of competent jurisdiction or agreed to recover in a written settlement agreement signed by Delinea arising out of such Claim; provided that: (i) Customer gives Xxxxxxx prompt written notice upon learning of a Claim or potential Claim; (ii) Delinea may assume sole control of the defaulted amount defense of such Claim and all related settlement negotiations; and (iii) Customer reasonably cooperates with Xxxxxxx, at Xxxxxxx’s request and reasonable expense, in the defense or settlement of the Claim, including the provision of all assistance, information and authority reasonably requested by Xxxxxxx. In no event shall Delinea enter into any related interestsettlement or agree to any disposition that contains an admission of liability or wrongdoing on the part of the Customer, or otherwise prejudices the rights of the Customer, without the prior written consent of the Customer. Any amounts received Notwithstanding the foregoing, Xxxxxxx shall have no liability for any claim of infringement based on (a) the use of a superseded or altered release of the Customer Managed Software if the infringement would have been avoided by the Agent in respect use of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by current unaltered release of the Agent and either applied against the purchase price of such Loans under the following subsection Customer Managed Software, (b) the modification of the Customer Managed Software or paid to such Defaulting Lender upon Cloud Service by anyone other than Delinea or its authorized agents, (c) the Defaulting Lender’s curing use of its defaultthe Customer Managed Software or Cloud Service other than in accordance with the Documentation and this Agreement, (d) the combination of the Customer Managed Software or Cloud Service with other software or hardware not provided by Delinea or approved for use by Delinea in writing, where the combination causes the infringement and not the Customer Managed Software or Cloud Service standing alone, or (e) subscriptions and licenses for no fee, including a Cloud Service Free Trial License, Evaluation Use License, Express Use License, or a trial, evaluation or beta version of Customer Managed Software or Cloud Service.

Generally. If for any reason any Lender (a “Defaulting Lender”’) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Domestic Business Days after notice from the Administrative Agent, then, in addition to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable LawLaws, such Defaulting Lender’s right to participate in the administration of the LoansAdvances, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Required Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s Loans Advances shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans Advances under the following subsection (b) or paid to such Defaulting Lender upon the such Defaulting Lender’s curing of its default.

Generally. If for Notwithstanding any reason provision of this Agreement to the contrary, if any Lender (becomes a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable Law, (i) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender’s right Lender pursuant to participate Section 3.5(b) and (ii) the Commitment of such Defaulting Lender shall not be included in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of determining whether the Requisite Lenders, shall be suspended during the pendency Super-Majority Lenders or all of such failure Lenders have taken or refusalmay take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 13.7, except as otherwise provided therein). If for any reason a Lender is a Defaulting Lender because it has failed fails to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (iA) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (iiB) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iiiC) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.

Generally. If for any reason any Lender (shall become a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, then such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect ofof any amendment, to consent to or waiver of the terms of this Agreement or any other Loan Document, or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Lenders, Lenders shall be suspended during while such Lender remains a Defaulting Lender; provided, however, that the pendency foregoing shall not permit (i) an increase in such Lender’s Commitment or (ii) an extension of the maturity date of such failure Lender’s Loans or refusalother Obligations owing to such Lender, in each of the cases described in clauses (i) and (ii), without such Lender’s consent, or (iii) an extension of the expiration date of a Letter of Credit beyond the Termination Date (except as permitted under Section 2.2.(b)) or, with respect to any Letter of Credit having an expiration date beyond the Termination Date as permitted by Section 2.2.(b), an extension of the expiration date of such Letter of Credit without such Lender’s consent if such Lender is directly and adversely affected thereby. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which then the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received No Commitment of any Lender shall be increased or otherwise affected, and except as otherwise expressly provided in this Section, performance by the Agent in respect Borrower of a Defaulting Lender’s Loans its obligations hereunder and under the other Loan Documents shall not be paid excused or otherwise modified, as a result of the operation of this Section. The rights and remedies of the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender and the Lenders against a Defaulting Lender under this Section are in addition to any other rights and remedies the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender and the Lenders may have against such Defaulting Lender and shall be held uninvested by under this Agreement, any of the Agent and either applied against the purchase price of such Loans under the following subsection (b) other Loan Documents, Applicable Law or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultotherwise.

Generally. If In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for any reason any Lender (a “Defaulting Lender”) cash, the consideration received therefor shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or deemed to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any net amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent Company therefor, after deduction therefrom of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in respect connection therewith. In case any shares of Common Stock, Options or Convertible Securities shall be issued or sold for a Defaulting Lender’s Loans consideration other than cash, the amount of the consideration other than cash received by the Company shall not be deemed to be the fair value of such consideration as determined in good faith by the Board of Directors of the Company, after deduction of any expenses incurred or any underwriting commissions or concessions paid or allowed by the Company in connection therewith. In case any Options shall be issued in connection with the issue and sale of other securities of the Company, together comprising one integral transaction in which no specific consideration is allocated to such Defaulting Lender and Options by the parties thereto, such Options shall be held uninvested deemed to have been issued for such consideration as determined in good faith by the Agent Board of Directors of the Company. If Common Stock, Options or Convertible Securities shall be issued or sold by the Company and, in connection therewith, other Options or Convertible Securities (the “Additional Rights”) are issued, then the consideration received or deemed to be received by the Company shall be reduced by the fair market value of the Additional Rights (as determined using the Black-Scholes option pricing model or another method mutually agreed to by the Company and either applied against the purchase price Holder). The Company shall respond promptly, in writing, to an inquiry by the Holder as to the fair market value of the Additional Rights. In the event that the Company and the Holder are unable to agree upon the fair market value of the Additional Rights, the Company and the Holder shall jointly select an appraiser, who is experienced in such matters. The decision of such Loans under appraiser shall be final and conclusive, and the following subsection (b) or paid to cost of such Defaulting Lender upon appraiser shall be borne by the Defaulting Lender’s curing of its defaultCompany.

Generally. If for any reason any Lender Except as otherwise specifically prescribed herein, all accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (a “Defaulting Lender”including financial ratios and other financial calculations) shall fail or refuse required to perform any of its obligations under be submitted pursuant to this Agreement or any other Loan Document shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to which it is time, applied in a party within manner consistent with that used in preparing the time period specified for performance of such obligation orAudited Financial Statements; provided, however, that if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from either the Agent, then, in addition to the rights and remedies that may be available to the Agent Parent or the Borrower under this Agreement or Applicable Lawthe Required Lenders notifies the Administrative Agent that it requests an amendment to any provision hereof to eliminate the effect of any Accounting Change occurring after the Closing Date on the operation of such provision, regardless of whether any such Defaulting Lender’s right notice is given before or after such Accounting Change, then the Administrative Agent, the Parent and the Borrower agree that they will negotiate in good faith amendments to participate in the administration provisions of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction Documents that are directly affected by such Accounting Change with the intent of having the respective positions of the Agent or Lenders, the Parent and the Borrower after such Accounting Change conform as nearly as possible to be taken into account in the calculation their respective positions as of the Requisite date of this Agreement (subject to the approval of the Required Lenders”) and, until any such amendments have been agreed upon, (i) the provisions in this Agreement shall be suspended during calculated as if no such Accounting Change had occurred until such request has been withdrawn or the pendency amendment of such failure provisions becomes effective under this Agreement and (ii) the Parent or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment the Borrower shall provide to the Administrative Agent and the Lenders a written reconciliation (which need not be audited), in form and substance reasonably satisfactory to the Administrative Agent, between calculations of any amount required to be paid to the Agent applicable ratios, baskets and other requirements hereunder (without before and after giving effect to any notice or cure periods)such Accounting Change. Notwithstanding anything to the contrary contained herein, in addition to other rights and remedies which the Agent or all leases of the Borrower may have under and the immediately preceding provisions or otherwiseRestricted Subsidiaries that are treated as operating leases for purposes of GAAP as of the date of this Agreement shall continue to be accounted for and treated as operating leases for purposes of the Loan Documents (including for purposes of the definition of Indebtedness and the references to Capital Lease Obligations) regardless of any change to GAAP following such date that would otherwise require such leases to be treated as Capitalized Leases and the obligations thereunder as Capital Lease Obligations. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the Agent computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be entitled (i) deemed to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made be carried at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction 100% of the defaulted payment outstanding principal amount thereof, and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document the effects of FASB ASC 825 and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and FASB ASC 470-20 on financial liabilities shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultdisregarded.

Generally. If Tenant shall not directly or indirectly assign this Lease in whole or in part, or sublet the Premises or any part thereof, or license the use of all or any portion of the Premises or business conducted thereon, or encumber or hypothecate this Lease, without first obtaining Landlord's written consent, which consent Landlord will not unreasonably withhold. The sale or other transfer of shares of stock, partnership interests or other ownership interests in Tenant resulting in a change in the effective control of Tenant, or any merger, consolidation or other reorganization of Tenant shall be regarded as an indirect assignment of Tenant's interest in this Lease. Tenant's request for consent to any reason assignment, sublease or other transfer shall be in writing and shall include the following: (a) the name and legal composition of the proposed transferee; (b) the nature of the proposed transferee's business to be carried on in the Premises; (c) the terms and provisions of the proposed assignment or sublease; and (d) such financial and other reasonable information as Landlord may request concerning the proposed transferee or concerning the proposed assignment or sublease and any Lender (transaction contemplated to occur in connection therewith. Any assignment, subletting, licensing, encumbering or hypothecating of this Lease without Landlord's prior written consent shall constitute a “Defaulting Lender”) breach of this Lease entitling Landlord to exercise all its rights and remedies herein provided. Landlord's consent to any assignment or sublease shall fail not constitute a waiver of the necessity for such consent to any subsequent assignment or refuse sublease. The prohibition against assignment and subletting contained in this paragraph shall be construed to perform include a prohibition against assignment or subletting by operation of law. Notwithstanding any of assignment or subletting with Landlord's consent, unless agreed to in writing, Tenant shall remain fully liable on this Lease and shall not be released from its obligations hereunder. Without limiting other reasons or circumstances, Landlord and Tenant agree that it is reasonable for Landlord to withhold consent to an assignment or sublease, if (i) the financial strength of the proposed assignee is not, in Landlord's reasonable judgment, commensurate with the obligations of the Lease; (ii) the proposed assignee's use would, in Landlord's reasonable judgment, be incompatible with the then current tenants, or use of the rest of the property. Notwithstanding anything in the above Paragraph 16.1, Tenant may, without Landlord's prior written consent sublet the Premises or assign the Lease to (i) a subsidiary, affiliate, division or corporation or entity controlling, controlled by or under this Agreement common control with Tenant; (ii) a successor corporation or entity resulting from or related to Tenant by merger, consolidation, nonbankruptcy reorganization, or government action; or fill) a purchaser of substantially all of Tenant's assets or stock located in the Premises. A sale or transfer of Tenant's capital stock shall not be deemed an assignment, subletting or any other Loan Document to which it is a party within transfer of the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent Lease or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultPremises.

Generally. If for Subject to all of the terms and conditions hereof, Agent agrees to make loans in U.S. Dollars to the Borrower under the Swing Line ("Swing Loans") which shall not in the aggregate at any reason any Lender time outstanding exceed the lesser of (a “Defaulting Lender”i) shall fail $10,000,000 (as the same may be reduced pursuant hereto, the "Swing Line Commitment") or refuse to perform any (ii) the difference between the Revolving Credit Commitments in effect at such time and the aggregate amount of its obligations under this Agreement or any other Loan Document to which it is a party within all Revolving Loans and L/C Obligations outstanding at the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may computation. The Swing Line Commitment shall be available to the Agent or Borrower and may be availed of by the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right from time to participate in time and borrowings thereunder may be repaid and used again during the administration period ending on the Revolving Credit Termination Date; provided that each Swing Loan must be repaid on the last day of the LoansInterest Period applicable thereto. Each Swing Loan shall be in a minimum amount of $250,000. Without regard to the face principal amount of the Swing Line Note, this Agreement the actual principal amount at any time outstanding and owing by the Borrower on account of the Swing Line Note during the period ending on the Revolving Credit Termination Date shall be the sum of all Swing Loans then or theretofore made thereon less all payments actually received thereon during such period. The Agent shall record on its books and records or on a schedule to the Swing Line Note the amount of each Swing Loan made by it, all payments of principal and interest and the other principal balance from time to time outstanding thereon, and, for any Swing Loan Documentsbearing interest at Agents' Quoted Rate, including without limitationthe Interest Period and the interest rate applicable thereto. The record thereof, any right to vote in respect of, to consent to or to direct any action or inaction whether shown on such books and records of the Agent or on a schedule to be taken into account in the calculation of the Requisite LendersSwing Line Note, shall be suspended during prima facie evidence as to all such matters; provided, however, that the pendency Agent's failure to record any of the foregoing or any error in any such failure record shall not limit or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to otherwise affect the Agent obligation of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect repay all Swing Loans made to it hereunder together with accrued interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultthereon.

Generally. On or before the date that is ten (10) business days following procurement of the Consent, Subtenant shall deposit with Sublandlord the sum of $495,000.00 (the "Security Deposit"). The Security Deposit shall be held by Sublandlord as security for the faithful performance by Subtenant of all the provisions of this Sublease to be performed or observed by Subtenant. If Subtenant fails to pay rent or other sums due hereunder, or otherwise defaults with respect to any provisions of this Sublease, and such failure or default is not cured within the applicable notice and cure period, Sublandlord may use, apply or retain all or any portion of the Security Deposit for the payment of any reason any Lender (a “Defaulting Lender”) shall fail rent or refuse other sum in default, to repair or maintain the Subleased Premises, to perform any of its obligations under other terms, covenants, or conditions contained in this Agreement Sublease, or to compensate Sublandlord for any loss or damage which Sublandlord may suffer thereby. If Sublandlord so uses or applies all or any other Loan Document portion of the Security Deposit, Subtenant shall within ten (10) days after demand therefor deposit cash with Sublandlord in an amount sufficient to which it is a party within restore the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition Security Deposit to the rights full amount thereof and remedies that may Subtenant's failure to do so shall be available a material breach of this Sublease. Sublandlord shall not be required to keep the Agent Security Deposit separate from its general accounts. The Security Deposit, or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lendersso much thereof as has not theretofore been applied by Sublandlord, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed returned, without interest, to make timely payment Subtenant (or, at Sublandlord's option, to the Agent last assignee, if any, of any amount Subtenant's interest hereunder) within thirty (30) days following the later to occur of (x) the expiration or termination of the Term, and (y) Subtenant's vacation of the Subleased Premises. No trust relationship is created herein between Sublandlord and Subtenant with respect to the Security Deposit. Sublandlord will not be required to be paid to keep the Agent hereunder (without giving effect to any notice or cure periods), in addition to Security Deposit separate from its other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultaccounts.

Generally. If Subject to the terms and conditions set forth in this Agreement, upon the written request of the Company in accordance herewith, the Issuing Lender shall issue Letters of Credit at any time during the Revolving Credit Commitment Period with pro rata participation by all of the Lenders in accordance with their respective Commitment Proportions. Notwithstanding the foregoing, no Letter of Credit shall be issued if, after giving effect to the same, the Dollar Equivalent Amount of the Aggregate Outstandings would exceed the Total Commitment or Aggregate Letters of Credit Outstanding would exceed $20,000,000. Furthermore, no Letter of Credit shall be issued without the consent of the Required Lenders during the occurrence and continuance of an Event of Default. Each request for any reason any issuance of a Letter of Credit shall be in writing and shall be received by the Issuing Lender by no later than 12:00 noon (a “Defaulting Lender”New York, New York time) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to on the day which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of at least two Business Days prior to the proposed date of issuance. Such issuance shall occur by no later than 5:00 p.m. on the proposed date of issuance (assuming proper prior notice as aforesaid). Subject to the terms and conditions contained herein, the expiry date, the type of Letter of Credit (i.e., Commercial Letter of Credit or Standby Letter of Credit) and the amount and beneficiary of the Letters of Credit will be as designated by the Company. The Issuing Lender shall promptly notify the Administrative Agent and the Lenders of the issuance of any Letter of Credit and of the amounts of all Letters of Credit issued hereunder and of any extension, reduction, termination or amendment of any Letter of Credit. Each Letter of Credit issued by the Issuing Lender hereunder shall be denominated in Dollars and shall identify: (i) the dates of issuance and expiry of such Letter of Credit, (ii) the amount of such Letter of Credit (which shall be a sum certain), (iii) the beneficiary of such Letter of Credit, and (iv) the drafts and other documents necessary to be presented to the Issuing Lender upon drawing thereunder. In no event shall any Letter of Credit expire (or by its terms be required to be renewed to a date) after notice the Revolving Credit Commitment Termination Date. The Issuing Lender will not issue a Letter of Credit hereunder which expires after the earlier to occur of (1) one (1) year from the Agent, thendate of issuance of such Letter of Credit (or, in addition the case of any renewal or extension thereof, one year after such renewal or extension) and (2) the Revolving Credit Commitment Termination Date. The Company agrees to execute and deliver to the rights Issuing Lender such further documents and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate instruments in the administration connection with any Letter of the Loans, this Agreement and the other Loan Documents, Credit issued hereunder (including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of applications therefor) as the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Issuing Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of accordance with its defaultcustomary practices may reasonably request.

Generally. If for any reason any Lender (a “Defaulting Lender”) Concurrently with the issuance of each Letter of Credit, the Issuing Bank automatically shall fail or refuse be deemed, irrevocably and unconditionally, to perform any of its obligations under this Agreement or any have sold, assigned, transferred and conveyed to each other Loan Document Bank, and each other Bank automatically shall be deemed, irrevocably and unconditionally, severally to which it is a party within the time period specified for performance of such obligation orhave purchased, if no time period is specifiedacquired, if such failure or refusal continues for a period of two Business Days after notice accepted and assumed from the AgentIssuing Bank, thenwithout recourse to, or representation or warranty by, the Issuing Bank, an undivided interest, in addition a proportion equal to such Bank's Pro Rata share, in all of the Issuing Bank's rights and obligations in, to or under such Letter of Credit, the related Letter of Credit Application, the Letter of Credit Reimbursement Obligations, and all collateral, guarantees and other rights from time to time directly or indirectly securing the foregoing (such interest of each Bank being referred to herein as a "Letter of Credit Participating Interest", it being understood that the Letter of Credit Participating Interest of the Issuing Bank is the interest not otherwise attributable to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration Letter of Credit Participating Interests of the Loans, this Agreement other Banks). Each Bank irrevocably and the other Loan Documents, including without limitation, any right unconditionally agrees to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions sentence, such agreement being herein referred to as such Bank's "Letter of Credit Participating Interest Commitment". Amounts other than Letter of Credit Reimbursement Obligations and Letter of Credit Fees payable from time to time under or otherwisein connection with a Letter of Credit or Letter of Credit Application shall be for the sole account of the Issuing Bank. On the date that any Purchasing Bank becomes a party to this Agreement in accordance with Section 9.13(c) hereof, Letter of Credit Participating Interests in all outstanding Letters of Credit held by the Bank from which such Purchasing Bank acquired its interest hereunder shall be proportionately reallocated between such Purchasing Bank and such transferor Bank (and, to the extent such transferor Bank is the Issuing Bank, the Agent Purchasing Bank shall be entitled (i) deemed to collect interest from such Defaulting Lender on such delinquent payment for the period have acquired a Letter of Credit Participating Interest from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable Issuing Bank to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultextent).

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two (2) Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of all of the Lenders or the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document Document, and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (bSection 3.11(b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default. Subject to the terms of this Agreement (including, without limitation, Section 12.15), Borrower does not waive any claim that it may have against a Defaulting Lender.

Generally. If Except as otherwise provided in this Agreement, the --------- following procedures shall be applicable with respect to indemnification for third party Claims. Promptly after receipt by the party seeking indemnification hereunder (hereinafter referred to as the "INDEMNITEE") of notice of the commencement of any reason action or the assertion of any Lender Claim, liability or obligation by a third party (a “Defaulting Lender”whether by legal process or otherwise), against which Claim, liability or obligation another party to this Agreement (hereinafter the "INDEMNITOR") shall fail is, or refuse to perform any of its obligations may be, required under this Agreement to indemnify such Indemnitee, the Indemnitee shall, if a claim thereon is to be, or any other Loan Document to which it is may be, made against the Indemnitor, immediately notify the Indemnitor in writing of the commencement or assertion thereof and give the Indemnitor a party within the time period specified for performance copy of such Claim or process and all legal pleadings. The Indemnitee's failure to give timely notice as required by this Section 11.4(a) shall not serve to eliminate or limit the Indemnitor's obligation or, if no time period is specified, if to indemnify the Indemnitee unless such failure prejudices the rights of the Indemnitor, and then only to the extent of such prejudice. Moreover, the Indemnitee shall have the right to take any actions or refusal continues for a period steps it deems reasonable to avoid the occurrence of two Business Days after notice from the Agent, then, in addition any prejudice to the rights of the Indemnitee. The Indemnitor shall have the right to assume the defense of such action with counsel of reputable standing unless with respect to such action (A) injunctive or equitable remedies have been sought therein in respect of the Indemnitee or its business or (B) such action is for an alleged amount of less than Five Thousand Dollars ($5,000); provided, that the -------- Indemnitee and remedies that may be available counsel to the Agent or Indemnitee shall have the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration defense of any and all Claims pursuant to the provisions of Section 11.4(b) hereof. The Indemnitor and the Indemnitee shall reasonably cooperate in the defense of such Claims. If the Indemnitee shall be required by judgment or a settlement agreement to pay any amount in respect of any obligation or liability against which the Indemnitor has agreed to indemnify the Indemnitee under this Agreement, the Indemnitor shall pay such amount to the Indemnitee in order to enable the Indemnitee to make such payment, and otherwise shall promptly reimburse the Indemnitee in an amount equal to the amount of such payment, in either case, plus all reasonable out-of-pocket expenses (including reasonable legal fees and expenses) incurred by such Indemnitee at the specific request of the LoansIndemnitor, as provided above, or as otherwise authorized by Section 11.4(b) hereof, in connection with such obligation or liability subject to this Agreement and Article XI. No Indemnitor, in the other Loan Documentsdefense of any such Claim, including without limitationshall, except with the consent of the Indemnitee, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee of a release from all liability with respect to such Claim. In the event that the Indemnitor does not accept the defense of any matter for which it is entitled to assume such defense as provided in this Section 11. 4(a), the Indemnitee shall have the full right to vote in respect of, to consent to or to direct defend against any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights Claim and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from settle or agree to pay in full such Defaulting Lender on such delinquent payment for the period from the date on Claim in its sole discretion. With respect to any matter as to which the payment was due until Indemnitor is not entitled to assume the date on defense pursuant to the terms of this Section 11.4(a), the Indemnitee shall not enter into any settlement for which an indemnification Claim will be made hereunder without the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction approval of the defaulted payment and any related interestIndemnitor, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans which shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultunreasonably withheld.

Generally. If for Notwithstanding anything else herein to the contrary, any reason Bank that is not a Related Bank or any Lender Group, after receiving (a) Borrower's prior written consent as to the identity of the assignee (which consent shall not be unreasonably withheld or delayed or, so long as a “Defaulting Lender”Borrower Inchoate Default under Section 7.1.1 or Borrower Event of Default has occurred and is continuing, required), (b) Administrative Agent's prior written consent (which consent shall fail not be unreasonably withheld or refuse delayed) and (c) the LC Bank's prior written consent if the assignee is rated lower than Baa3 by Xxxxx'x or lower than BBB- by S&P (which consent shall not be unreasonably withheld or delayed), may from time to perform time, at its option, sell, assign, transfer, negotiate or otherwise dispose of all or any portion of one or more of its obligations under this Agreement Commitments (and Loans made thereunder) (including such Bank's or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, Lender Group's interest in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Credit Documents) to any bank or other lending institution or other Lender Group which in such assigning Bank's or Lender Group's judgment is reasonably capable of performing the obligations of a Bank or Lender Group hereunder; provided, however, that no Bank or Lender Group may assign any portion of its Commitments (including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment Loans) prior to the Agent earlier of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from March 31, 2002 and (ii) the date on which the payment was due until Lead Arrangers and Borrower notify the date on which Banks and Lender Groups otherwise; provided, further, that no Bank or Lender Group (including any assignee of any Bank or any Lender Group) may assign any portion of its Commitments (including Loans) of less than $10,000,000 (unless to another Bank or another Lender Group); provided, further, that a Bank or Lender Group may assign Commitments (including Loans) of less than $10,000,000 if such assignment includes all of such Bank's or Lender Group's Commitments (including Loans) and such Bank or Lender Group did not previously assign its Commitments (including Loans) so as to result in such Bank or Lender Group holding less than $10,000,000 of Commitments (including Loans); provided, further, that any Bank may assign all or any portion of its Commitments (and Loans made thereunder) to an Affiliate of such Bank and any Lender Group may assign all or any portion of its Commitments (and Loans made thereunder) to the payment is made at Related Bank in such Lender Group as a Bank, in each instance without the Federal Funds Rateconsent of any Person; and provided, further, that in the event of any assignment by a Lender Group of a portion of its Lender Group Construction Loans, such assignment shall designate the amount of such assigned Lender Group Construction Loans that are Related Bank Loans and the amount that are CP Conduit Construction Loans. In the event of any such assignment, (i) the assigning Bank's or the assigning Lender Group's Proportionate Share shall be reduced and its obligations hereunder released by the amount of the Proportionate Share assigned to the new lender, (ii) the parties to withhold such assignment shall execute and deliver to Administrative Agent an Assignment Agreement evidencing such sale, assignment, transfer or setoff and other disposition substantially in the form of Exhibit L hereto or otherwise satisfactory to apply in satisfaction Administrative Agent together with an assignment fee payable to Administrative Agent of $5,000 (provided such assignment fee shall not be required with respect to the initial syndication of the defaulted payment Arrangers' Commitments or with respect to an assignment by a Lender Group to the Related Bank in such Lender Group) and any other related interestdocumentation reasonably requested by Administrative Agent, any amounts otherwise payable to such Defaulting Lender including the withholding tax certificates required under this Agreement or any other Loan Document and Section 2.5.7, (iii) at the assigning Bank's or the assigning Lender Group's option, (A) Borrower shall execute and deliver to bring an action or suit against such Defaulting Lender assignee new Notes in the forms attached hereto as Exhibits B-1 through B-3 hereto in a court principal amount equal to such assignee's Commitments, and (B) Borrower shall execute and exchange with the assigning Bank or the Lender Group Agent for the assigning Lender Group replacement notes for any Notes in an amount equal to the Commitments retained by such Bank or such Lender Group, if any, (iv) to the extent the assigning Bank or the Lender Group Agent for the assigning Lender Group has been issued any Notes in its favor, such Bank or Lender Group Agent shall cancel and return each such Note to Borrower promptly after the effectiveness of competent jurisdiction any such assignment, (v) Exhibit I hereto shall be automatically amended without further action to recover reflect such assignment and the defaulted amount Proportionate Shares of the Banks and the Lender Groups following such assignment and (vi) to the extent such assignment is to a Lender Group, (A) the Related Bank in such Lender Group shall, during the Construction Loan Availability Period, provide any related interest. Any amounts received applicable Parallel Funding Commitments with respect to such Lender Group and Exhibit I hereto shall be automatically amended without further action to reflect such assignment, and (B) the portion of Construction Loans assigned to such Lender Group and funded by the Agent CP Conduit in such Lender Group shall (x) to the extent a Base Rate Loan, be deemed to be Base Rate Loan of such CP Conduit with a Base Rate calculated with respect to such CP Conduit and (y) to the extent a LIBOR Loan continue as such LIBOR Loan until the end of the then current Interest Period and then automatically and without further act or instrument be converted into a CP Conduit Funded LIBOR Construction Loan on the last day of such Interest Period, which will be deemed to have been funded by such CP Conduit on such day. Thereafter, any such new lender shall be deemed to be a Bank and shall have all of the rights and duties of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by Bank (except as otherwise provided in this Article 9), in accordance with its Proportionate Share, under each of the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultCredit Documents.

Generally. If for No Company shall incur any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any material accumulated funding deficiency within the meaning of its obligations under this Agreement ERISA, or any other Loan Document material liability to which it is the PBGC, established thereunder in connection with any ERISA Plan. Borrower shall furnish to Agent and the Lenders (i) as soon as possible and in any event within thirty (30) days after any Company knows or has reason to know that any Reportable Event with respect to any ERISA Plan has occurred, a party within the time period specified for performance statement of a Financial Officer of such obligation orCompany, setting forth details as to such Reportable Event and the action that such Company proposes to take with respect thereto, together with a copy of the notice of such Reportable Event given to the PBGC if no time period a copy of such notice is specifiedavailable to such Company, if and (ii) promptly after receipt thereof, a copy of any notice such failure Company, or refusal continues for a period any member of two Business Days after notice the Controlled Group may receive from the Agent, then, in addition to the rights and remedies that may be available to the Agent PBGC or the Internal Revenue Service with respect to any ERISA Plan administered by such Company; provided that this latter clause shall not apply to notices of general application promulgated by the PBGC or the Internal Revenue Service. Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the promptly notify Agent of any amount required material taxes assessed, proposed to be paid assessed or that Borrower has reason to believe may be assessed against a Company by the Internal Revenue Service with respect to any ERISA Plan. As used in this Section 5.6(a), “material” means the measure of a matter of significance that shall be determined as being an amount equal to five percent (5%) of Consolidated Net Worth. As soon as practicable, and in any event within twenty (20) days, after any Company shall become aware that an ERISA Event shall have occurred, such Company shall provide Agent with notice of such ERISA Event with a certificate by a Financial Officer of such Company setting forth the details of the event and the action such Company or another Controlled Group member proposes to take with respect thereto. Borrower shall, at the request of Agent or any Lender, deliver or cause to be delivered to Agent or such Lender, as the case may be, true and correct copies of any documents relating to the Agent hereunder (without giving effect to ERISA Plan of any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultCompany.

Generally. If Except as otherwise provided in this Agreement, the following procedures shall be applicable with respect to indemnification for third party Claims. Promptly after receipt by the party seeking indemnification hereunder (hereinafter referred to as the "INDEMNITEE") of notice of the commencement of any reason action or the assertion of any Lender Claim, liability or obligation by a third party (a “Defaulting Lender”whether by legal process or otherwise), against which Claim, liability or obligation another party to this Agreement (hereinafter the "INDEMNITOR") shall fail is, or refuse to perform any of its obligations may be, required under this Agreement to indemnify such Indemnitee, the Indemnitee shall, if a claim thereon is to be, or any other Loan Document to which it is may be, made against the Indemnitor, immediately notify the Indemnitor in writing of the commencement or assertion thereof and give the Indemnitor a party within the time period specified for performance copy of such Claim or process and all legal pleadings. The Indemnitee's failure to give timely notice as required by this Section 11.5(a) shall not serve to eliminate or limit the Indemnitor's obligation or, if no time period is specified, if to indemnify the Indemnitee unless such failure prejudices the rights of the Indemnitor, and then only to the extent of such prejudice. Moreover, the Indemnitee shall have the right to take any actions or refusal continues for a period steps it deems reasonable to avoid the occurrence of two Business Days after notice from the Agent, then, in addition any prejudice to the rights of the Indemnitee. The Indemnitor shall have the right to assume the defense of such action with counsel of reputable standing unless with respect to such action (A) injunctive or equitable remedies have been sought therein in respect of the Indemnitee or its business or (B) such action is for an alleged amount of less than Five Thousand Dollars ($5,000); provided, that the Indemnitee and remedies that may be available counsel to the Agent or -------- Indemnitee shall have the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration defense of any and all Claims pursuant to the provisions of Section 11.5(b) hereof. The Indemnitor and the Indemnitee shall reasonably cooperate in the defense of such Claims. If the Indemnitee shall be required by judgment or a settlement agreement to pay any amount in respect of any obligation or liability against which the Indemnitor has agreed to indemnify the Indemnitee under this Agreement, the Indemnitor shall pay such amount to the Indemnitee in order to enable the Indemnitee to make such payment, and otherwise shall promptly reimburse the Indemnitee in an amount equal to the amount of such payment, in either case, plus all reasonable out-of-pocket expenses (including reasonable legal fees and expenses) incurred by such Indemnitee at the specific request of the LoansIndemnitor, as provided above, or as otherwise authorized by Section 11.5(b) hereof, in connection with such obligation or liability subject to this Agreement and Article XI. No Indemnitor, in the other Loan Documentsdefense of any such Claim, including without limitationshall, except with the consent of the Indemnitee, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee of a release from all liability with respect to such Claim. In the event that the Indemnitor does not accept the defense of any matter for which it is entitled to assume such defense as provided in this Section 11.5(a), the Indemnitee shall have the full right to vote in respect of, to consent to or to direct defend against any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights Claim and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from settle or agree to pay in full such Defaulting Lender on such delinquent payment for the period from the date on Claim in its sole discretion. With respect to any matter as to which the payment was due until Indemnitor is not entitled to assume the date on defense pursuant to the terms of this Section 11.5(a), the Indemnitee shall not enter into any settlement for which an indemnification Claim will be made hereunder without the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction approval of the defaulted payment and any related interestIndemnitor, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans which shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultunreasonably withheld.

Generally. If for any reason any Lender (shall become a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, then such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect ofany amendment, to consent to or waiver of the terms of this Agreement or any other Loan Document, or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during while such Lender remains a Defaulting Lender; provided, however, that the pendency foregoing shall not permit an increase in such Lender’s Commitment or an extension of the Termination Date of such failure Lender’s Loans or refusalother Obligations owing to such Lender, in each case, without such Lender’s consent. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which then the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received No Commitment of any Lender shall be increased or otherwise affected, and except as otherwise expressly provided in this Section, performance by the Agent in respect Borrower of a Defaulting Lender’s Loans its obligations hereunder and the other Loan Documents shall not be paid excused or otherwise modified, as a result of the operation of this Section. The rights and remedies of the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender and the Lenders against a Defaulting Lender under this Section are in addition to any other rights and remedies the Borrower, the Administrative Agent, the Issuing Bank and the Lenders may have against such Defaulting Lender and shall be held uninvested by under this Agreement, any of the Agent and either applied against the purchase price of such Loans under the following subsection (b) other Loan Documents, Applicable Law or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultotherwise.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in In addition to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable Lawapplicable law, if at any time a Lender is a Defaulting Lender such Defaulting Lender’s 's right to participate in the administration of the Loans, this Agreement and the other Loan DocumentsCredit Documents (excluding for purposes hereof, those matters requiring the unanimous consent or approval of the Lenders, or requiring the approval of each Lender directly affected thereby, pursuant to Section 9.1(i) through 9.1(vii) hereof or Section 9.6(a)), including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Required Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Effective Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Credit Document until such defaulted payment and related interest has been paid in full and such default no longer exists and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s 's Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the default of such Defaulting Lender’s curing of its defaultLender being cured.

Generally. If All payments hereunder and under any other Credit Document shall be made by the Borrowers without condition or deduction for any reason counterclaim, defense, recoupment or setoff of any Lender (kind. Except as otherwise specifically provided herein and except with respect to principal and interest on Loans denominated in an Alternative Currency, all payments made by a “Defaulting Lender”) Credit Party hereunder shall fail or refuse be made to perform the Applicable Agent, for the account of the respective Banks to which such payment is owed, in Dollars in Same Day Funds, at the Applicable Agent’s Office specified in Section 11.1. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder with respect to principal and interest on Loans denominated in an Alternative Currency shall be made to the Administrative Agent, for the account of the respective Banks to which such payment is owed, at the applicable Administrative Agent’s Office in such Alternative Currency and in Same Day Funds not later than the Applicable Time specified by the Administrative Agent on the dates specified herein. Without limiting the generality of the foregoing, the Applicable Agent may require that any of its obligations payments due under this Credit Agreement be made in the United States. If, for any reason, any Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, such Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. All payments shall be received by the Applicable Agent not later than (i) 2:00 p.m. on the date when due in the case of payments in Dollars and (ii) the Applicable Time specified by the Administrative Agent on the date when due in the case of payments in Alternative Currencies. Payments received after such time shall be deemed to have been received on the next succeeding Business Day. The Applicable Agent may (but shall not be obligated to) debit the amount of any such payment which is not made by such time to any ordinary deposit account of the Borrowers or any other Loan Document Credit Party maintained with the Applicable Agent (with notice to which it is a party within the Borrower Representative or such other Credit Party). The Borrowers shall, at the time period specified for performance of such obligation orit makes any payment under this Credit Agreement, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition specify to the rights and remedies that may be available to the Applicable Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and LOC Obligations, fees, interest or other amounts payable by the other Loan Documents, including without limitation, any right Borrowers hereunder to vote in respect of, to consent to or to direct any action or inaction of the Agent or which such payment is to be taken into account applied (and in the calculation of event that it fails so to specify, or if such application would be inconsistent with the Requisite Lendersterms hereof, the Applicable Agent shall be suspended during the pendency of distribute such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Banks in such manner as the Applicable Agent of any amount required may determine to be paid appropriate in respect of obligations owing by the Borrowers hereunder, subject to the terms of Section 3.13(a)). The Applicable Agent will distribute such payments to such Banks, if any such payment is received prior to 2:00 p.m. on a Business Day in like funds as received prior to the end of such Business Day and otherwise the Applicable Agent will distribute such payment to such Banks on the next succeeding Business Day. Whenever any payment hereunder (without giving effect shall be stated to any notice or cure periods), in addition to other rights and remedies be due on a day which the Agent or the Borrower may have under the immediately preceding provisions or otherwiseis not a Business Day, the Agent due date thereof shall be entitled extended to the next succeeding Business Day (i) subject to collect accrual of interest from such Defaulting Lender on such delinquent payment and fees for the period from of such extension), except that in the date on which case of Eurocurrency Rate Loans, if the extension would cause the payment was due until to be made in the date next following calendar month, then such payment shall instead be made on the next preceding Business Day. Except as expressly provided otherwise herein, all computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurocurrency Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which the payment is made at the Federal Funds Rate, (ii) to withhold results in more fees or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender as applicable, being paid than if computed on the basis of a 365 day year), or, in a court the case of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent interest in respect of a Defaulting Lender’s Loans shall not be paid denominated in Alternative Currencies as to which market practice differs from the foregoing, in accordance with such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultmarket practice.

Generally. If for any reason any Lender (a “Defaulting Lender”) (i) has given notice to the Agent or Borrower that it will not make, or that it has disaffirmed or repudiated any obligation to make any Loan or fund any participation in Letter of Credit Liabilities (unless such notice is given by all Lenders) and has not revoked such notice or reaffirmed its obligations to make any Loan and fund any participations in Letter of Credit Liabilities, (ii) fails, within three (3) Business Days after request by the Agent, and continues to fail to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans or any participation in Letter of Credit Liabilities, (iii) has (X) become and remains insolvent or has a parent company that has become and remains insolvent, (Y) become and continues to be the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become and continues to be the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment, or (Z) been taken over by the FDIC or any other state or federal regulator or Governmental Authority, or (iv) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower Borrowers under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender pursuant to clause (i), (ii) or (iii) or because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower Borrowers may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (iw) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (iix) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and Document, (iiiy) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interestinterest and (z) to request the Borrower to deliver, and the Borrower shall deliver, to the Agent cash collateral in an amount equal to such Defaulting Lender’s pro rata share of the Letter of Credit Liabilities then outstanding (to be held by Administrative Agent as set forth in this Agreement). If the Borrower provides an amount of cash collateral pursuant to Section 2.4.(c) or Section 3.13.(b)(y), such amount shall be returned to the Borrower from time to time to the extent, as applicable, the amount deposited as cash collateral shall exceed the Defaulting Lender’s Letter of Credit Liabilities or if such Lender ceases to be a Defaulting Lender and continues as a Lender hereunder. No Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 3.13., performance by Borrower of its obligations hereunder and the other Loan Documents shall not be excused or otherwise modified as a result of the operation of this Section 3.13. The rights and remedies against a Defaulting Lender under this Section 3.13. are in addition to other such rights and remedies which the Borrower may have against such Defaulting Lender and which the Agent or any Lender may have against such Defaulting Lender. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the such Defaulting Lender’s curing of its default.

Generally. If for any reason any Lender During the initial Term (a the “Defaulting LenderFirst Offer Term”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or), if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition and subject to the rights and remedies of the existing Building tenants as of the Effective Date, regardless of whether such rights are exercised strictly in accordance with their respective terms or pursuant to lease amendments or new leases (“Superior Rights”), Tenant shall have the one-time right of first offer (the “Right of First Offer”) to lease any space which becomes Available for Lease (described below) on the fourteenth (14th) floor of the Building (the “Offering Space”). Offering Space shall be deemed to be “Available for Lease” as follows: with respect to any Offering Space that may be available is under lease from time to time to third parties (which, as of the Agent or Effective Date, is true for all of the Borrower under this Agreement or Applicable LawOffering Space), such Defaulting Lender’s Offering Space shall be deemed to be Available for Lease when Landlord has determined that such third party will not extend or renew the term of its lease for the Offering Space (whether pursuant to an existing option or right or otherwise) and/or the then-current lease for the Offering Space will be terminated and, in either case, no occupant of the Building has a Superior Right which is subject to participate exercise. After Landlord has determined that any portion of Offering Space is Available for Lease, Landlord shall advise Tenant (the “Advice”) of the terms, (inclusive of the Lease term (the “Offering Space Term”), which will be the greater of (x) the then-remaining Term and (y) five (5) full calendar years) under which Landlord is prepared to lease such Offering Space to Tenant. The Advice shall set forth (i) the proposed Base Rent for the Offering Space (which will be reasonably consistent with other recent relevant transactions in the administration Building, if any, adjusted so as to match the term proposed in the Advice and the Base Year, if applicable), (ii) the RSF and location thereof, (iii) the delivery condition of the LoansOffering Space, this Agreement and (iv) all other terms upon which Landlord proposes to lease the other Loan DocumentsOffering Space to Tenant including, including without limitation, any right to vote in respect of, to consent to or to direct tenant improvement allowance and any action or inaction applicable rent concessions. Landlord’s Advice will specify a proposed date of availability of the Agent or to Offering Space which date shall be taken into account in no less than three (3) months following the calculation date of delivery of the Requisite LendersAdvice. Tenant may lease such Offering Space in its entirety only, shall be suspended during under such terms, by delivering irrevocable written notice of exercise to Landlord (“Notice of Exercise”) within ten (10) Business Days after the pendency date of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to delivery of the Agent of any amount required to be paid to Advice (the Agent hereunder (without giving effect to any notice or cure periods“Offer Exercise Period”), in addition to other rights except that Tenant shall have no such Right of First Offer and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwiseLandlord need not provide Tenant with an Advice, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.if:

Generally. If Lessee will not directly or indirectly create, or permit the creation of, any mortgage, lien, security interest, encumbrance or charge on, pledge of or conditional sale or other title retention agreement with respect to the Premises or any part thereof, other than (a) this Lease and ancillary rights in favor of third parties as permitted herein; (b) a Leasehold Mortgage which is permitted under the terms of Section 21; (c) liens for Impositions not yet payable, or payable without the addition of any reason fine, penalty, interest or cost for nonpayment, or being contested as permitted by Section 12; (d) Permitted Exceptions; and (e) Unpermitted Liens, incurred in the ordinary course of business for sums which under the terms of the related contracts are not at the time due if adequate provision for the payment thereof shall have been made by Lessee. Lessee will provide Lessor with prompt written notice of any Lender lien or notice of lien placed against the Premises, and Lessee will promptly thereafter remove and discharge any mortgage, lien, security interest, encumbrance or charge created by Lessee (or by any third party as a “Defaulting Lender”result of Lessee’s conduct) in violation of the preceding sentence. In the event that Lessee’s leasehold interest under the Lease is encumbered by a Leasehold Mortgage pursuant to the provisions of Section 21, Lessee shall fail (i) use commercially reasonable efforts to cause any Leasehold Mortgagee to provide to Lessor copies of any notices from such Leasehold Mortgagee alleging any non-compliance, breach or refuse default by Lessee in respect of such Leasehold Mortgage ( provided that Lessee shall be deemed to perform satisfy the requirements of this clause (i) if Lessee delivers to such Leasehold Mortgagee a written request to provide such notices to Lessor; and (ii) within ten (10) days after receipt of any such notice from Leasehold Mortgagee, provide to Lessor a copy of any such notice from such Leasehold Mortgagee alleging any non-compliance, breach or default under any of its obligations under the loan documents regarding such Leasehold Mortgage ( provided that so long as Lessor receives such notice pursuant to either clause (i) or (ii) above, Lessee shall be deemed to satisfy the requirements of this Agreement or any other Loan Document clause). Notwithstanding anything to which it is a party within the time period specified contrary contained in this Section 11, Lessee may enter into fixture financing arrangements for performance of fixtures and equipment located on the Property, and Lessor agrees that Lessor’s claims to such obligation orfixtures and equipment, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lendersany, shall be suspended during subordinate to any such fixture financing arrangements so long as such arrangements do not encumber Lessor’s interest in the pendency of such failure or refusalPremises. If a Lender is a Defaulting Lender because it has failed Lessee fails to make timely payment to the Agent remove, discharge or bond over any lien not otherwise described in (a) through (e) above including without limitation any Unpermitted Lien within thirty (30) days of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied its being placed against the purchase price of Property, Lessor may do so, and Lessee shall reimburse Lessor for all costs incurred by Lessor in connection with removing such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultlien.

Generally. If Subject to the terms and conditions set forth in this Agreement, upon the written request of a Letter of Credit Party in accordance herewith, the Issuing Lender shall issue at any time during the Revolving Credit Commitment Period with pro rata participation by all of the Lenders in accordance with their respective Commitment Proportions for the account of such Letter of Credit Party (i) Commercial Letters of Credit in an aggregate amount not to exceed the Commercial Letter of Credit Commitment and (ii) Standby Letters of Credit, in an aggregate amount not to exceed the Standby Letter of Credit Commitment. Notwithstanding the foregoing, no Letter of Credit shall be issued if, after giving effect to the same, the Aggregate Outstandings would exceed the Total Revolving Credit Commitment. The Company agrees that it shall be jointly and severally obligated with any reason other Letter of Credit Party for all Letters of Credit issued by the Issuing Lender hereunder regardless of whether the Company is the named account party for such Letter of Credit. Notwithstanding anything contained herein to the contrary, the Issuing Lender shall be under no obligation to issue a Letter of Credit, if any order, judgment or decree of any court, arbitrator or Governmental Authority shall purport by its terms to enjoin, restrict or restrain the Issuing Lender (in any respect relating to the issuance of such Letter of Credit or a “Defaulting Lender”) shall fail or refuse to perform any similar letter of its obligations under this Agreement credit, or any other Loan Document law, rule, regulation, policy, guideline or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over the Issuing Lender shall prohibit or direct the Issuing Lender in any respect relating to which it is a party within the time period specified for performance issuance of such obligation orLetter of Credit or similar letter of credit, if or shall impose upon the Issuing Lender with respect to any Letter of Credit any restrictions, any reserve or capital requirement or any loss, cost or expense not reimbursed by the Company and/or the applicable Letter of Credit Party to the Issuing Lender. Each request for issuance of a Letter of Credit shall be in writing and shall be received by the Issuing Lender by no time period later than 12:00 noon, New York, New York time, on the day which is specified, if such failure or refusal continues for a period of at least two Business Days after notice from the Agent, then, in addition prior to the rights and remedies that may be available proposed date of issuance. Such issuance shall occur by no later than 5:00 p.m. on the proposed date of issuance or creation (assuming proper prior notice as aforesaid). Subject to the Agent terms and conditions contained herein, the expiry date, the type of Letter of Credit (i.e., Commercial Letter of Credit or Standby Letter of Credit) and the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration amount and beneficiary of the Loans, this Agreement Letters of Credit will be as designated by the applicable Letter of Credit Party. The Issuing Lender shall notify the Administrative Agent and the Lenders quarterly of the amounts of all Letters of Credit issued hereunder and of any extension, reduction, termination or amendment of any Letter of Credit. Each Letter of Credit issued by the Issuing Lender hereunder shall identify: (i) the dates of issuance and expiry of such Letter of Credit, (ii) the amount of such Letter of Credit (which shall be a sum certain), (iii) the beneficiary of such Letter of Credit, and (iv) the drafts and other Loan Documents, documents necessary to be presented to the Issuing Lender upon drawing thereunder. The Company and each Letter of Credit Party agree to execute and deliver to the Issuing Lender such further documents and instruments in connection with any Letter of Credit issued hereunder (including without limitation, any right applications therefor) as the Issuing Lender in accordance with its customary practices may reasonably request. Each Commercial Letter of Credit shall expire at or prior to vote in respect of, to consent to or to direct any action or inaction the close of business on the earlier of the Agent date one year after the date of the issuance of such Commercial Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension). Each Standby Letter of Credit shall expire not later than the close of business on the date four years after the date of issuance of such Standby Letter of Credit. Notwithstanding the foregoing, provided that if the Letter of Credit Party so requests in any Letter of Credit application, the Issuing Lender may, in its sole and absolute discretion, agree to issue a Standby Letter of Credit that has an automatic extension provision which may permit such Standby Letter of Credit to be taken into account in extended at Issuing Lender’s option for up to one additional year at a time and/or expire after the calculation Commitment Termination Date. If this Agreement shall terminate, whether upon the Commitment Termination Date or by reason of the Requisite Lenders, shall be suspended during the pendency occurrence and continuance of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent an Event of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions Default or otherwise, the Company shall deposit in an account with the Administrative Agent shall be entitled (i) an amount in cash equal to collect the Aggregate Letters of Credit Outstanding as of such date plus any accrued and unpaid interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interestthereon. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and Such deposit shall be held uninvested by the Administrative Agent as collateral for the payment and either applied against performance of the purchase price obligations of the Company under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultaccounts.

Generally. If Each Party shall keep complete, true and accurate books of account and records for any reason any Lender the purpose of determining the amounts payable under this Agreement (including, for avoidance of doubt, Development Costs, Commercial Manufacturing Costs, Commercialization Expenses, Sublicensing Income, Third Party license payments, Shared Costs, and Profits and Losses). Such books and records shall be kept at the principal place of business of each Party, as the case may be, for at least [***] years (or such longer period as required by applicable Law) following the end of the Calendar Year to which they pertain, provided that SGEN shall keep such books and records that are related to Reimbursable [***] for a Collaboration Product for at least [***] years following 81 Portions of the exhibit, indicated by the xxxx “Defaulting Lender[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. CONFIDENTIAL TREATMENT REQUESTED the [***] for such Collaboration Product. Each Party (the “Audited Party”) shall fail make such account and records available, on reasonable notice sent by the other Party (the “Auditing Party”), for inspection during normal business hours, with not less than [***] Business Days’ advance written notice, by an independent certified public accounting firm nominated by such and reasonably acceptable for the Audited Party, for the purpose of verifying the accuracy of any statement or refuse report given by the Audited Party and to verify the accuracy of the payments due hereunder for any Calendar Year. Such auditor shall advise the Parties simultaneously promptly upon its completion of its audit whether or not the payments due hereunder have been accurately recorded, calculated, and reported, and, if not, then the amount of such discrepancy. A Party’s financial records with respect to a given period of time shall only be subject to [***] audit per Calendar Year except in the case of willful misconduct or fraud. The Auditing Party’s right to perform an audit pertaining to any of its obligations under this Agreement or any other Loan Document to which it is a party within Calendar Year shall expire [***] years after the time period specified for performance end of such obligation orCalendar Year, if no time period is specified, if such failure or refusal continues provided that PIRS shall have the right to perform an audit of Reimbursable [***] for a Collaboration Product for a period of two Business Days after notice from [***] years following the Agent[***] for such Collaboration Product (which, thenfor the avoidance of doubt, shall include all such Reimbursable [***] even if incurred more than [***] years prior to the audit). The auditor shall be required to keep confidential all information learned during any such inspection, and to disclose to the Auditing Party only such details as may be necessary to report the accuracy of the Audited Party’s statement or report. The Auditing Party shall be responsible for the auditor’s costs, unless the auditor certifies that there was a variation or error of underpayment or overpayment of Shared Costs by the Auditing Party exceeding [***] percent ([***]%) of the amount stated for any period covered by the inspection, in addition which case all reasonable costs relating to the rights and remedies inspection for such period shall be borne by the Audited Party. If such accounting firm correctly identifies a discrepancy made during such period, any unpaid amounts or overpaid amounts that may are discovered shall be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate paid/refunded promptly but in the administration any event within [***] days of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction date of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency delivery of such failure accounting firm’s written report so correctly concluding, or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts as otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received agreed upon by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultParties.

Generally. If for any reason any Lender (a “"Defaulting Lender”") shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower Borrowers under this Agreement or Applicable Law, such Defaulting Lender’s 's right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower Borrowers may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s 's Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the such Defaulting Lender’s 's curing of its default.

Generally. If for Notwithstanding anything in any reason Credit Document to the contrary, so long as (i) no Default or Event of Default has occurred and is continuing on both the date a Discounted Prepayment Notice (as defined below) is delivered to the Administrative Agent and Lenders and the date a Discounted Prepayment (as defined below) is made (both before and after giving effect thereto), (ii) all parties to such transaction render a Big Boy Letter and (iii) no proceeds of Incremental Revolving Loans are used to make any Lender such Discounted Prepayment, the Borrower or other Credit Party (in such capacity, the “Discounted Prepayment Offeror”) will be permitted to (x) offer to make voluntary prepayments of the Term Loans (other than Term C Loans) from internally generated funds and/or with the proceeds of any contribution to the common equity capital of the Discounted Prepayment Offeror (each, a “Defaulting LenderDiscounted Prepayment”) shall fail on one or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition more occasions pursuant to the rights provisions of this Section 2.25, and remedies that may be available (y) make such Discounted Prepayment on one or more occasions pursuant to the Agent or the Borrower under provisions of this Agreement or Applicable LawSection 2.25 (it being understood that no Lender will have an obligation to accept a Discounted Prepayment). As used herein, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If “Big Boy Letter” means a letter from a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder acknowledging that (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or 1) the Borrower may have under information regarding the immediately preceding provisions or otherwiseBorrower and the Subsidiaries, their ability to perform the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement Obligations or any other Loan Document material information that has not previously been disclosed to the Administrative Agent and the Lenders (“Excluded Information”), (2) the Excluded Information may not be available to such Lender, (3) such Lender has independently and without reliance on any other party made its own analysis and determined to assign Term Loans to the Borrower pursuant to this Section 2.25 notwithstanding its lack of knowledge of the Excluded Information and (iii4) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount waives and releases any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied claims it may have against the purchase price Administrative Agent, the Borrower and the Subsidiaries with respect to the nondisclosure of the Excluded Information; or otherwise in form and substance reasonably satisfactory to the Administrative Agent, the Borrower and assigning such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.

Generally. If for any reason any Lender (a “Defaulting Lender”) Except as otherwise specifically provided herein, all payments hereunder shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available made to the Agent in Dollars in immediately available funds, without setoff, deduction, counterclaim, or withholding of any kind, at the Agent's office specified in Section 10.1 not later than 10:00 a.m. (Pasadena, California time) on the date when due; provided that no Default or Event of Default shall be deemed to have occurred in connection with payments made on the due date but received after such cut-off time, even though credited for receipt on the following Business Day. Payments received after such time shall be deemed to have been received on the next succeeding Business Day. The Agent may (but shall not be obligated to) debit the amount of any such payment which is not made by such time to any ordinary deposit account of the Borrowers or any Guarantor maintained with the Agent (with notice to the Borrowers or such Guarantor). Each Borrower shall, at the time it makes any payment under this Agreement or Applicable LawAgreement, such Defaulting Lender’s right specify to participate in the administration of Agent the Loans, this Agreement and the LOC Obligations, Fees, interest, or other Loan Documents, including without limitation, any right amounts payable by such Borrower hereunder to vote in respect of, to consent to or to direct any action or inaction of the Agent or which such payment is to be taken into account applied (and in the calculation of event that such Borrower fails so to specify, or if such application would be inconsistent with the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwiseterms hereof, the Agent shall distribute such payment to the Lenders in such manner as the Agent may determine to be entitled appropriate in respect of obligations owing by the Borrowers hereunder, subject to the terms of Section 3.7). The Agent will distribute such payments to such Lenders, if any such payment is received prior to 10:00 a.m. (iPasadena, California time) on a Business Day in like funds as received prior to collect the end of such Business Day and otherwise the Agent will distribute any such payment to such Lenders on the next succeeding Business Day. Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day (subject to accrual of interest from such Defaulting Lender on such delinquent payment and Fees for the period of such extension), except that in the case of Eurodollar Loans, if the extension would cause the payment to be made in the next following calendar month, then such payment shall instead be made on the next preceding Business Day. Subject to Section 2.8, unless expressly provided otherwise herein, all computations of interest and fees shall be made on the basis of actual number of days elapsed over a year of 360 days. Interest shall accrue from and include the date on which the payment was due until of borrowing, but exclude the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultpayment.

Generally. If for Except as otherwise specifically provided herein, all payments hereunder shall be made to the Administrative Agent in Dollars in immediately available funds, without setoff, deduction, counterclaim or withholding of any reason kind, at the Administrative Agent's Office not later than 2:00 P.M. on the date when due. Payments received after such time shall be deemed to have been received on the next succeeding Business Day. The Administrative Agent may (but shall not be obligated to) debit the amount of any Lender (a “Defaulting Lender”) shall fail or refuse such payment which is not made by such time to perform any ordinary deposit account of its obligations under this Agreement the Borrower or any other Loan Document Credit Party maintained with the Administrative Agent (with notice to which it is a party within the Borrower or such other Credit Party). The Borrower shall, at the time period specified for performance of such obligation orit makes any payment under this Credit Agreement, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition specify to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and LOC Obligations, Fees, interest or other amounts payable by the other Loan Documents, including without limitation, any right Borrower hereunder to vote in respect of, to consent to or to direct any action or inaction of the Agent or which such payment is to be taken into account applied (and in the calculation of event that it fails so to specify, or if such application would be inconsistent with the Requisite Lendersterms hereof, the Administrative Agent shall be suspended during the pendency of distribute such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Lenders in such manner as the Administrative Agent of any amount required may determine to be paid appropriate in respect of obligations owing by the Borrower hereunder, subject to the terms of Section 3.15(a)). The Administrative Agent will distribute such payments to such Lender, if any such payment is received prior to 2:00 P.M. on a Business Day in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent will distribute such payment to such Lender on the next succeeding Business Day. Whenever any payment hereunder (without giving effect shall be stated to any notice or cure periods), in addition to other rights and remedies be due on a day which the Agent or the Borrower may have under the immediately preceding provisions or otherwiseis not a Business Day, the Agent due date thereof shall be entitled extended to the next succeeding Business Day (i) subject to collect accrual of interest from such Defaulting Lender on such delinquent payment and Fees for the period of such extension), except that in the case of Eurodollar Loans, if the extension would cause the payment to be made in the next following calendar month, then such payment shall instead be made on the next preceding Business Day. Except as expressly provided otherwise herein, all computations of interest and fees shall be made on the basis of actual number of days elapsed over a year of 360 days, except with respect to computation of interest on Base Rate Loans at times when the Base Rate is determined by Bank of America's "prime rate" which shall be calculated based on a year of 365 or 366 days, as the case may be, and actual days elapsed. Interest shall accrue from and include the date on which the payment was due until of borrowing, but exclude the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultpayment.

Generally. If for any reason any Lender (a “"Defaulting Lender”") shall fail or refuse to perform any of its obligations under this Credit Agreement or any other Loan Credit Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two (2) Business Days after notice from the Administrative Agent, then, in addition to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Credit Agreement or Applicable applicable Law, such Defaulting Lender’s 's right to participate in the administration of the Loans, this Credit Agreement and the other Loan Credit Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Required Lenders, shall be suspended during the pendency of such failure or refusal. Upon a Lender becoming a Defaulting Lender, the Administrative Agent shall give prompt notice to each other Lender thereof. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Credit Agreement or any other Loan Credit Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s 's Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s 's curing of its default.

Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20 on financial liabilities shall be disregarded. If for at any reason time, any Lender change in GAAP (a “Defaulting Lender”including the adoption of IFRS) would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Required Lenders shall fail so request, the Administrative Agent, the Lenders and the Borrower shall negotiate in good faith to amend such ratio or refuse requirement to perform any preserve the original intent thereof in light of its obligations such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (A) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (B) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or any other Loan Document to which it is as reasonably requested hereunder setting forth a party within the time period specified for performance reconciliation between calculations of such obligation or, if no time period is specified, if such failure ratio or refusal continues for a period of two Business Days requirement made before and after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periodssuch change in GAAP. Without limiting the foregoing, for all purposes of this Agreement only those leases that would constitute Capitalized Leases in conformity with GAAP as in effect prior to giving effect to the adoption of ASU No. 2016-02 “Leases (Topic 842), in addition to other rights ” and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent ASU No. 2018-11 “Leases (Topic 842)” shall be entitled (i) to collect interest from considered Capitalized Leases, unless the parties hereto shall enter into a mutually acceptable amendment addressing such Defaulting Lender on such delinquent payment changes, as provided for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultabove.

Generally. Borrower and Lender shall each designate in writing by notice to the other party an individual a person authorized to sign any required notices on behalf of Borrower or Lender, as applicable, under the Loan Documents (each, an “Authorized Representative”). Borrower and Lender agree to be bound by any request (i) authorized or transmitted by its Authorized Representative on behalf of Borrower or Lender, as applicable, or (ii) made in Borrower’s or Lender’s, as applicable, name by an Authorized Representative and accepted by Lender or Borrower, as applicable, in good faith and in compliance with these instructions, even if not properly authorized by Borrower or Lender, as applicable. Borrower and Lender further agree and acknowledge that Lender and Borrower, as applicable, may rely solely on any bank routing number or identifying bank account number or name provided by its Authorized Representative to effect a wire transfer of funds even if the information provided by such Authorized Representative identifies a different bank or account holder than those named by Borrower or Lender, as applicable. Neither Lender nor Borrower is obligated or required in any way to take any actions to detect errors in information provided by an Authorized Representative. If Borrower or Lender takes any actions in an attempt to detect errors in the transmission or content of transfer requests or takes any actions in an attempt to detect unauthorized funds transfer requests, Lender and Borrower, as applicable, agree that no matter how many times Lender or Borrower, as applicable, takes these actions, Lender or Borrower, as applicable, will not in any situation be liable for failing to take or correctly perform these actions in the future, and such actions shall not become any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any part of its obligations the transfer disbursement procedures authorized under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation orAgreement, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, or any right agreement between Lender and Borrower. Borrower and Lender agree to vote in respect of, to consent to or to direct notify the other party of any action or inaction of the Agent or to be taken into account errors in the calculation transfer of any funds or of any unauthorized or improperly authorized transfer requests within fourteen (14) days after confirmation of such transfer. Without limiting the Requisite Lendersforegoing, in no event shall Borrower be obligated to report to, seek consent from, or otherwise communicate with the EB-5 Investors, and Lender shall be suspended during the pendency of sole contact with such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment EB-5 Investors for all matters relating to the Agent of any amount required to be paid to Loan Documents and the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultLoan.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two (2) Business Days after notice from the Administrative Agent, then, in addition to the rights and remedies that may be available to the Agent Administrative Agent, Borrower or the Borrower Lenders under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of all of the Lenders or the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods)hereunder, in addition to the other rights and remedies which the Agent Administrative Agent, Borrower or the Borrower Lenders may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document Document, and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans under the following subsection (bSection 3.7(b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.

Generally. If for any reason any Lender Prior to the Closing Date and with sufficient time prior to the Closing Date to enable Seller to comply with its obligation under Section 4.4.4, Buyer shall deliver to Seller a list of Seller’s employees to whom it will not be making offers of employment (which shall be less than 30% of Seller’s employees who are employed by the Business as of the Closing). Buyer shall extend offers of employment to at least 70% of Seller’s employees who are employed by the Business as of the Closing (each such employee to whom such offer is extended, a “Defaulting LenderSelected Employee”) to commence as of the Closing Date, and shall fail hire all Selected Employees who accept such offers and report for work on the date directed by Buyer (each such Selected Employee who accepts such offer and reports for work, a “Hired Employee”). The terms and conditions of each such offer and of any continuing employment will be determined by Buyer in its sole discretion, and any resulting employment relationship will be at will, except that the base salary or refuse hourly wage offered shall initially be at least as great as the base salary or hourly wage being paid by Seller, and except to perform the extent otherwise provided for Selected Employees who enter into written employment agreements with Buyer. Nothing in this Section 4.4.1 shall be interpreted to impose any of its obligations Liability on Buyer with respect to (a) any Excluded Liability, (b) any Liability with respect to any Seller employee arising prior to Closing, including Liability arising under this Agreement WARN, COBRA or any other Loan Document Law except as set forth in Section 4.4.5, or (c) any Liability with respect to which it is any Seller employee other than a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days Hired Employee arising from and after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan DocumentsClosing, including without limitationLiability arising under WARN, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement COBRA or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court Law, all of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and which Liability shall be held uninvested retained by Seller following the Agent Closing except as set forth in Section 4.4.5 for Liability arising under COBRA with respect to any Seller employee other than a Hired Employee arising from and either applied against after the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultClosing.

Generally. If for any reason any Lender (a “"Defaulting Lender”") shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two (2) Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower Borrowers under this Agreement or Applicable Law, such Defaulting Lender’s 's right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of all of the Lenders or the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower Borrowers may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document Document, and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s 's Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (bSection 3.11(b) or paid to such Defaulting Lender upon the Defaulting Lender’s 's curing of its default.. (b) Purchase or Cancellation of Defaulting Lender's Commitment. Any Lender who is not a Defaulting Lender shall have the right, but not the obligation, in its sole discretion, to acquire all of a Defaulting Lender's Commitment. Any Lender desiring to exercise such right shall give written notice thereof to the Agent and the Borrowers no sooner than two (2) Business Days and not later than five (5) Business Days after such Defaulting Lender became a Defaulting Lender. If more than one Lender exercises such right, each such Lender shall have the right to acquire an amount of such Defaulting Lender's Commitment in proportion to the Commitments of the other Lenders exercising such right. If after such fifth (5th) Business Day, the Lenders have not elected to purchase all of the Commitment of such Defaulting Lender, then the Borrowers may, by giving written notice thereof to the Agent, such Defaulting Lender and the other Lenders, either (i) demand that such Defaulting Lender assign its Commitment to an Eligible Assignee approved by Agent (such approval not to be unreasonably withheld) subject to and in accordance with the provisions of Section 12.5(d) for the purchase price provided for below or (ii) terminate the Commitment of such Defaulting Lender, whereupon such Defaulting Lender shall no longer be a party hereto or have any rights or obligations hereunder or under any of the other Loan Documents (except as expressly provided in this Section 3.11(b)). No party hereto shall have any obligation whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. Upon any such purchase or assignment, the Defaulting Lender's interest in the Loans and its rights hereunder (but not its liability in respect thereof or under the Loan Documents or this Agreement to the extent the same relate to the period prior to the effective date of the purchase) shall terminate on the date of purchase, and the Defaulting Lender shall promptly execute all documents reasonably requested to surrender and transfer such interest to the purchaser or assignee thereof, including an appropriate Assignment and Acceptance Agreement and, notwithstanding Section 12.5(d), shall pay to the Agent an assignment fee in the amount of $3,500. The purchase price for the Commitment of a Defaulting Lender shall be equal to the amount of the principal balance of the Loans outstanding and owed by the Borrowers to the Defaulting Lender. Prior to payment of such purchase price to a Defaulting Lender, the Agent shall apply against such purchase price any amounts retained by the Agent pursuant to the last sentence of Section 3.11(a). The Defaulting Lender shall be entitled to receive amounts owed to it by the Borrowers under the Loan Documents which accrued prior to the date of the default by the Defaulting Lender, to the extent the same are received by the Agent from or on behalf of the Borrowers. There shall be no recourse against any Lender or the Agent for the payment of such sums except to the extent of the receipt of payments from any other party or in respect of the Loans. Section 3.12

Generally. If for Notwithstanding any reason provision of this Agreement to the contrary, if any Lender (becomes a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable Law, (i) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Lender’s right Lender pursuant to participate Section 3.5.(b) and (ii) the Commitment of such Defaulting Lender shall not be included in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of determining whether the Requisite Lenders, shall be suspended during the pendency Majority Lenders or all of such failure Lenders have taken or refusalmay take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 13.7., except as otherwise provided therein). If for any reason a Lender is a Defaulting Lender because it has failed fails to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (iA) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (iiB) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iiiC) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.

Generally. In the event of a dispute or a claim arising out of, or relating to the inspection or the report, or any alleged negligent act, error or omission on Our part or on the part of the inspector conducting the inspection, either party may give written notice of the dispute or claim to the other party. If the dispute is not resolved within twenty one (21) days from the service of the written Notice then either party may refer the dispute or claim to an independent mediator nominated by us. The cost shall be met equally by both parties or as agreed as part of the mediation settlement. Should the dispute or claim not be resolved by mediation then one or other of the parties may refer the dispute or claim to the Institute of Arbitrators and Mediators of Australia who will appoint an Arbitrator who will resolve the dispute by arbitration. The Arbitrator will also determine what costs each of the parties are to pay. • In the event any litigation is bought as a result of the inspection and/or report, you indemnify us against any legal fees and expenses incurred where you have not first allowed Us the opportunity to visit the property to investigate the complaint and provide you with a written response within 28 days. • THIRD PARTY DISCLAIMER: We will not be liable for any reason loss, damage, cost or expense, whatsoever, suffered or incurred by any Lender (a “Defaulting Lender”) shall fail Person other than You in connection with the use of the Inspection Report provided pursuant to this agreement by that Person for any purpose or refuse in any way, including the use of this report for any purpose connected with the sale, purchase, or use of the Property or the giving of security over the Property, to perform any the extent permissible by law. The only Person to whom We may be liable and to whom losses arising in contract or tort sustained may be payable by Us is the Client named on the face page of its obligations under this Agreement • Prohibition on the Provision or Sale of the Report The Report may not be sold or provided to any other Loan Document Person without Our express written permission, unless the Client is authorised to which do so by Legislation. If We give our permission it is may be subject to conditions such as payment of a party within further fee by the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice other Person and agreement from the Agentother Person to comply with this clause. However, thenWe may sell the Report to any other Person although there is no obligation for Us to do so. • Release You release Us from any and all claims, in addition to actions, proceedings, judgments, damages, losses, interest, costs and expenses of whatever nature that the rights and remedies that Person may be available to have at any time hereafter arising from the Agent unauthorised provision or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration sale of the Loans, this Agreement and the other Loan Documents, including Report by You to a Person without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusalOur express written permission. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent • Indemnity You indemnify Us in respect of any and all liability, including all claims, actions, proceedings, judgments, damages, losses, interest, costs and expenses of any nature, which may be incurred by, brought, made or recovered against Us arising directly or indirectly from the unauthorised provision or sale of the Report by You to a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultPerson without Our express written permission.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in In addition to the rights and remedies that --------- may be available to the Agent or the Borrower under this Agreement or Applicable Lawapplicable law, if at any time a Bank is a Defaulting Bank such Defaulting Lender’s Bank's right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite LendersAgent, shall be suspended during the pendency of such failure or refusal. If a Lender Bank is a Defaulting Lender Bank because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender Bank on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender Bank under this Agreement or any other Loan Document until such defaulted payment and related interest has been paid in full and such default no longer exists and (iii) to bring an action or suit against such Defaulting Lender Bank in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Bank's Loans shall not be paid to such Defaulting Lender Bank and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender Bank upon the default of such Defaulting Lender’s curing of its defaultBank being cured.

Generally. If for any reason any Lender (a “"Defaulting Lender”") shall --------- fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two five Business Days after notice from the Administrative Agent, then, in addition to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s 's right to participate in the administration of the LoansLoan, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document until such defaulted payment and related interest has been paid in full and such default no longer exists and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s Loans 's portion of the Loan shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans portion of the Loan under the following subsection (b) or paid to such Defaulting Lender upon the default of such Defaulting Lender’s curing of its defaultLender being cured.

Generally. If for any reason any Lender Except as otherwise specifically prescribed herein, all accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (a “Defaulting Lender”including financial ratios and other financial calculations) shall fail or refuse required to perform any of its obligations under be submitted pursuant to this Agreement or shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time; provided, however, that, (i) calculations made on a Pro Forma Basis shall be made as provided in clause (c) below, and (ii) calculations of attributable indebtedness under any other Loan Document to which it is Synthetic Lease (the capitalized amount of the remaining lease payments under the relevant lease that would appear on a party within the time period specified for performance balance sheet of such obligation or, if no time period is specifiedPerson prepared as of such date in accordance with GAAP, if such failure lease were accounted for as a Capital Lease) or refusal continues for a period the implied interest component of two Business Days after notice from any Synthetic Lease shall be made by the applicable Person in accordance with accepted financial practice and consistent with the terms of such Synthetic Lease. (b) Changes in GAAP. If, at any time, any change in GAAP (including the adoption of IFRS) would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Borrower or the Requisite Lenders shall so request, the Administrative Agent, then, the Lenders and the Borrower shall negotiate in addition good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation approval of the Requisite Lenders); provided, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods)that, in addition to other rights and remedies which the Agent until so amended or the Borrower may have under the immediately preceding provisions or otherwiserequest for amendment has been withdrawn, the Agent shall be entitled (i) such ratio or requirement shall continue to collect interest from be computed in accordance with GAAP prior to such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Ratechange therein, and (ii) to withhold the extent requested by the Administrative Agent, the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement, or setoff as requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable after giving effect to such Defaulting Lender under change in GAAP. Notwithstanding anything to the contrary in the foregoing, for all purposes of this Agreement or (including, without limitation, the provisions of Article VII (including, without limitation, the Financial Covenants)), leases shall continue to be classified and accounted for on a basis consistent with that reflected in the Audited Financial Statements for all purposes of this Agreement, notwithstanding any other Loan Document and change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such changes, as provided for above. (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.c)

Generally. If for any reason any Lender (The Borrower shall and shall cause each Subsidiary to: preserve and maintain its corporate existence and all of its material rights, privileges and franchises; keep books of record and account in which full, true and correct entries will be made of all dealings or transactions in relation to its business and activities; comply with all Governmental Requirements if failure to comply with such requirements will have a “Defaulting Lender”) shall fail Material Adverse Effect; pay and discharge all taxes, assessments and governmental charges or refuse to perform levies imposed on it or on its income or profits or on any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition Property prior to the rights date on which penalties attach thereto, except for any such tax, assessment, charge or levy the payment of which is being contested in good faith and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Lawby proper proceedings and against which adequate reserves are being maintained; upon reasonable notice, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction permit representatives of the Agent or any Lender, during normal business hours, to examine, copy and make extracts from its books and records, to inspect its Properties, and to discuss its business and affairs with its officers, all to the extent reasonably requested by such Lender or the Agent (as the case may be); and keep, or cause to be taken into account kept, insured by financially sound and reputable insurers all Property of a character usually insured by Persons engaged in the calculation same or similar business similarly situated against loss or damage of the Requisite kinds and in the amounts customarily insured against by such Persons and carry such other insurance as is usually carried by such Persons including, without limitation, environmental risk insurance to the extent reasonably available, or provide adequate reserves for self-insurance for any contingent environmental liability. The Borrower shall promptly obtain endorsements to such insurance policies naming “Xxxxx Fargo Bank, National Association, as Agent for the Lenders” as joint loss payee, shall additional insured, and containing provisions that such policies will not be suspended during canceled without 30 days’ prior written notice having been given by the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment insurance company to the Agent of any amount required (and not that the insurance company will merely endeavor to be paid give the Agent 30 days’ prior written notice prior to cancellation). Notwithstanding the foregoing, but subject to the Agent hereunder (without giving effect terms of this Agreement, the Borrower shall be allowed to dissolve and liquidate any Inactive Subsidiary; provided that any assets available for distribution following such dissolution and liquidation are distributed to the Borrower or an Active Subsidiary. No assets can be transferred to any notice or cure periods), in addition to other rights and remedies which Inactive Subsidiary once it reaches inactive status without the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction prior written consent of the defaulted payment and Agent, nor can any related interestInactive Subsidiary, once it reaches inactive status, make any amounts otherwise payable to such Defaulting Lender under this Agreement investments, loans, or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultadvances.

Generally. If for Subject to the limitations set forth in subsection (ii) below, any reason Bank may, at its option, assign to another Person all or a part of its Commitment, Advances and other rights and obligations under this Agreement, but only pursuant to an Assignment Certificate. From and after the effective date of any Lender (a “Defaulting Lender”) shall fail or refuse such assignment, the assignee thereunder shall, to perform any of the extent that rights and obligations hereunder have been assigned to it pursuant to such assignment, have the rights and obligations so assigned to it, and the assigning Bank shall, to the extent that rights and obligations have been assigned by it pursuant to such assignment, relinquish its rights and be released from its obligations under this Agreement or any other Loan Document to which it is Agreement. Any Bank making an assignment under this Section shall pay the Agent a party within transfer fee in the time period specified for performance amount of $3,500 concurrent with such obligation or, if no time period is specified, if such failure or refusal continues for a period of two assignment. Within five Business Days after notice from any request of the AgentAgent following such assignment, thenthe Borrower will, in addition to the rights at its own expense, execute and remedies that may be available deliver to the Agent or (for delivery to the Borrower assignee) a new replacement Note payable to the order of such assignee in an amount corresponding to the interest in the assigning Bank’s rights and obligations under this Agreement or Applicable Law, acquired by such Defaulting Lender’s right assignee pursuant to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect ofsuch assignment and, to consent to or to direct any action or inaction of the Agent or to be taken into account in extent that the calculation of assigning Bank has retained rights and obligations under this Agreement, the Requisite LendersBorrower will, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment at its own expense, execute and deliver to the Agent of any amount required to be paid (for delivery to the Agent hereunder (without giving effect assigning Bank) a new replacement Note payable to any notice or cure periods), the order of the assigning Bank in addition an amount corresponding to other the interest in the assigning Bank’s rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender obligations under this Agreement or any other Loan Document and (iii) to bring an action or suit against retained by such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid assigning Bank pursuant to such Defaulting Lender assignment. Such new replacement Notes shall be dated the effective date of such assignment and shall otherwise be held uninvested by in the Agent and either applied against form of the purchase price of such Loans under Note to be replaced thereby. Such new replacement Notes shall be issued in substitution for, but not in satisfaction or payment of, the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultNote being replaced thereby.

Generally. If As of the date of this Agreement, Seller may have engaged various law firms or consultants to protest the valuation of the Unit ("Protest Proceedings") for the purpose of protesting the amount of ad valorem taxes for certain tax fiscal periods, some of which taxes may have been paid by Seller and some of which taxes either are not yet due and payable or have not been paid. With respect to the tax year in which the Closing occurs, and all prior tax years, Seller is hereby authorized (during the Interim Period) to continue any reason Protest Proceeding for the Unit, it being acknowledged that the trial or settlement of any Lender (such Protest Proceeding during the Interim Period shall constitute a “Defaulting Lender”Purchaser Consent Action, subject to the provisions of Section 8(a) of this Agreement. All net tax refunds and credits attributable to any tax year prior to the tax year in which the Closing occurs shall fail or refuse belong to perform any and be the property of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation orSeller, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition subject to the rights of tenants under their respective Leases. All net tax refunds and remedies that credits attributable to any tax year subsequent to the tax year in which the Closing occurs shall belong to and be the property of Purchaser, subject to the rights of tenants under their respective Leases. All net tax refunds and credits attributable to any tax year not described in the preceding two (2) sentences shall be divided between Seller and Purchaser in accordance with the apportionment of taxes set forth in Section 8A(b)(2) below. Seller and Purchaser agree to cooperate with one another in connection with the prosecution of any such proceedings and to take all reasonable steps, whether before or after the Closing Date, as may be available reasonably necessary to carry out the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration intention of the Loansforegoing, this Agreement and the other Loan Documentsincluding, including without limitation, to the extent in a party's possession, the delivery to the party pursuing the appeal of any right relevant books and records, including receipted tax bills and canceled checks used in payment of such taxes, and, provided that there is no liability or material expense to vote the party delivering such materials in respect ofdoing so, the execution of any and all consents or other documents, and the undertaking of any act necessary for the collection of such refund. The parties agree to keep one another apprised of all such proceedings, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment provide one another (except to the Agent extent that the attorney-client privilege would be violated) with copies of all relevant books, records and documentation relating to any such proceeding, and with respect to any course of action which the pursuing party could reasonably expect to have a material impact on any proceeding or on the outcome of any amount required proceeding, such party agrees to be paid to consult with the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff party and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to obtain such Defaulting Lender under this Agreement or any other Loan Document and party's consent (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans which consent shall not be paid unreasonably withheld or delayed) before proceeding with any such action. Notwithstanding the foregoing limitation, Seller agrees that neither Seller nor its representatives will withhold, because of the attorney-client privilege or work product immunity, from Purchaser or its representatives any relevant information received by Seller or its representatives from, or delivered by Seller or its representatives to, the New York City taxing authorities. If either party hereto shall receive any refund payments contemplated by this subsection 8A(b) which are properly payable to the other party, such Defaulting Lender and payments shall be held uninvested in trust by such party, for the Agent benefit of the other, and either applied against the purchase price of such Loans under the following subsection (b) or paid remitted to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultother party promptly after receipt.

Generally. If Except as otherwise provided in this Agreement, the following procedures shall be applicable with respect to indemnification for third party Claims. Promptly after receipt by the party seeking indemnification hereunder (hereinafter referred to as the "Indemnitee") of notice of the commencement of any reason action or the assertion of any Lender Claim, liability or obligation by a third party (a “Defaulting Lender”whether by legal process or otherwise), against which Claim, liability or obligation another party to this Agreement (hereinafter the "Indemnitor") shall fail is, or refuse to perform any of its obligations may be, required under this Agreement to indemnify such Indemnitee, the Indemnitee shall, if a claim thereon is to be, or any other Loan Document to which it is may be, made against the Indemnitor, immediately notify the Indemnitor in writing of the commencement or assertion thereof and give the Indemnitor a party within the time period specified for performance copy of such Claim or process and all legal pleadings. The Indemnitee's failure to give timely notice as required by this Section 11.5(a) shall not serve to eliminate or limit the Indemnitor's obligation or, if no time period is specified, if to indemnify the Indemnitee unless such failure prejudices the rights of the Indemnitor, and then only to the extent of such prejudice. Moreover, the Indemnitee shall have the right to take any actions or refusal continues for a period steps it deems reasonable to avoid the occurrence of two Business Days after notice from the Agent, then, in addition any prejudice to the rights of the Indemnitee. The Indemnitor shall have the right to assume the defense of such action with counsel of reputable standing unless with respect to such action (A) injunctive or equitable remedies have been sought therein in respect of the Indemnitee or its business or (B) such action is for an alleged amount of less than Five Thousand Dollars ($5,000); provided, that the Indemnitee and remedies that may be available counsel to the Agent or Indemnitee shall have the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration defense of any and all Claims pursuant to the provisions of Section 11.5(b) hereof. The Indemnitor and the Indemnitee shall reasonably cooperate in the defense of such Claims. If the Indemnitee shall be required by judgment or a settlement agreement to pay any amount in respect of any obligation or liability against which the Indemnitor has agreed to indemnify the Indemnitee under this Agreement, the Indemnitor shall immediately pay such amount to the Indemnitee in order to enable the Indemnitee to make such payment, and otherwise shall promptly reimburse the Indemnitee in an amount equal to the amount of such payment, in either case, plus all reasonable out-of-pocket expenses (including legal fees and expenses) incurred by such Indemnitee at the specific request of the LoansIndemnitor, as provided above, or as otherwise authorized by Section 11.5(b) hereof, in connection with such obligation or liability subject to this Agreement and Article XI. No Indemnitor, in the other Loan Documentsdefense of any such Claim, including without limitationshall, except with the consent of the Indemnitee, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee of a release from all liability with respect to such Claim. In the event that the Indemnitor does not accept the defense of any matter for which it is entitled to assume such defense as provided in this Section 11.5(a), the Indemnitee shall have the full right to vote in respect of, to consent to or to direct defend against any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights Claim and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from settle or agree to pay in full such Defaulting Lender on such delinquent payment for the period from the date on Claim in its sole discretion. With respect to any matter as to which the payment was due until Indemnitor is not entitled to assume the date on defense pursuant to the terms of this Section 11.5(a), the Indemnitee shall not enter into any settlement for which an indemnification Claim will be made hereunder without the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction approval of the defaulted payment and any related interestIndemnitor, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans which shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultunreasonably withheld.

Generally. If for any reason any Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its material obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the such Defaulting Lender’s curing of its default.

Generally. If for any reason any Lender The Sellers shall use their best efforts to cause the respective Time Share Associations which are managed by the Club Managing Entity, at their sole cost and expense, to maintain the policies of insurance described on Schedule 3.1(ff) as in effect on the date hereof or otherwise in substantially similar form and amounts and with insurers having an AM Best rating of at least A-(IX); provided that if market conditions in the insurance industry limit the Sellers' ability to obtain such insurance on commercially reasonably terms, the Facility Administrator and the Sellers shall in good faith cooperate to select insurers and coverages reasonably acceptable to the Facility Administrator and the Sellers. All such policies of insurance (a “Defaulting Lender”or the loss payable and additional insured endorsements delivered to the Trust Depositor or its assigns) shall fail contain provisions pursuant to which the insurer agrees to provide (or refuse endeavor to perform provide) at least 10 days prior written notice to Trust Depositor or its assigns and the Facility Administrator in the event of any cancellation of any such insurance policy; provided that Sellers agree to use commercially reasonable efforts to require the applicable insurer to provide 30 days prior written notice of cancellation. If any Seller fails to cause to be obtained or maintained, any of the policies of insurance required above, Trust Depositor or its obligations under this Agreement assigns, including Facility Administrator, may at any time or times thereafter obtain and maintain such policies of insurance and pay such premiums and take any other Loan Document action with respect thereto that such party deems advisable. Such party shall have no obligation to which it is a party within the time period specified for performance of obtain any such obligation orinsurance or pay any premiums therefor. By doing so, if no time period is specified, if Termination Event arising from any Seller's failure to maintain such failure insurance or refusal continues for a period of two Business Days after notice from the Agent, then, in addition pay any premiums therefor shall be deemed to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documentshave been waived. All sums so disbursed, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite LendersCosts related thereto, shall be suspended during the pendency of such failure payable on demand by Sellers to Trust Depositor or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent its assigns or the Borrower Facility Administrator, as the case may have under be. Notwithstanding the immediately preceding provisions or otherwiseforegoing, the Agent shall required insurance may be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received maintained by the Agent Time Share Association as required by the Declaration in respect of a Defaulting Lender’s Loans shall not be paid the applicable Time Share Association, provided that in the event any Time Share Association fails to such Defaulting Lender and maintain any insurance required under this Section 4.27 then Sellers shall be held uninvested required to obtain and maintain such insurance in respect of any Time Share Association which is managed by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultClub Managing Entity.

Generally. If Except for an assignment or sublease to a “Tenant Affiliate” (as hereinafter defined), Tenant shall not permit any assignment of this Lease or any interest hereunder by operation of law or otherwise, sublet the Premises or any part thereof, or enter into any license or concession agreements or otherwise permit the occupancy or use of the Premises or any part thereof by any persons other than Tenant and its employees (all of the foregoing are hereinafter sometimes referred to collectively as “Transfers,” and individually as a “Transfer,” and any person to whom any Transfer is made or sought to be made is hereinafter sometimes referred to as a “Transferee”) without Landlord’s prior written consent in each instance. In addition, Tenant shall not, without the prior written consent of Landlord, which may be withheld for any reason or for no reason, in the sole and absolute discretion of Landlord, mortgage, pledge, hypothecate, encumber, or permit any Lender (a “Defaulting Lender”) shall fail or refuse lien to perform any of its obligations under attach to this Agreement Lease or any other Loan Document to which it is a party within interest hereunder. In the time period specified event of any such Transfer, the Transferee will be jointly and severally liable with Tenant for all payments and for the due performance of such obligation orall terms, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights covenants and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount conditions herein contained which are required to be paid and performed by Tenant. No Transfer relating to this Lease, or agreement entered into with respect thereto, whether with or without Landlord’s consent, shall relieve Tenant or any guarantor of this Lease from any liability under this Lease. No collection or acceptance of Rent by Landlord from any Transferee shall be deemed a waiver of any provision of this Paragraph 16 or the approval of any Transferee. Whether or not Landlord consents to any proposed Transfer, Tenant shall pay Landlord’s review and processing fees, as well as any reasonable professional fees and expenses (including, without limitation, attorneys’, accountants’, architects’, engineers’ and consultants’ fees and expenses) incurred by Landlord. If requested by Landlord, such fees shall be due and payable to Landlord prior to Landlord’s execution of a consent to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultproposed Transfer.

Generally. If for any reason any Lender (a “Defaulting Lender”"DEFAULTING LENDER") shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Administrative Agent, then, in addition to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s 's right to participate in the administration of the Loans, this Agreement Agreement, and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to to, or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, and (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interestDocument. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s 's Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans under the following subsection SUBSECTION (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.'s ALLIED AMENDED AND RESTATED CREDIT AGREEMENT

Generally. If for any reason any Subject to the terms and conditions set forth in this Agreement, during the Commitment Period, each Lender hereby severally and not jointly agrees to make a term loan (each individually, a “Defaulting LenderLoan” and, collectively, the “Loans”) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition Dollars, to other rights and remedies which the Agent or the Borrower may have under as requested by the immediately preceding provisions or otherwiseBorrower in accordance with Section 2.1(b) (the first of such draws, the Agent shall be entitled “Initial Loan Borrowing” and the subsequent borrowing, the “Delayed Loan Borrowing”, and collectively, the “Loan Borrowings”); provided that (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds RateInitial Loan Borrowing and any Delayed Loan Borrowing shall be in a minimum amount of $1,000,000, and not more than 3 Delayed Loan Borrowings shall be permitted, (ii) to withhold or setoff and to apply in satisfaction all Loan Borrowings shall be made no later than the last day of the defaulted payment and any related interestCommitment Period, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) the aggregate principal amount of such Loan Borrowing shall not exceed the amount of the unused Commitments on the date of (and immediately prior to) such Loan Borrowing, and (iv) the principal amount of Loans made by any Lender to bring an action the Borrower shall not exceed such Lender’s Commitment. No Lender shall be responsible for any failure by any other Lender to perform its obligation to make a Loan hereunder nor shall the Commitment of any Lender be increased or suit against decreased as a result of any such Defaulting Lender in failure. The Loans, or any portion thereof, may be either a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received Base Rate Loan or a LIBOR Loan, as determined by the Agent Borrower in any Notice of Borrowing, any Notice of Continuation, any Notice of Conversion or as otherwise provided in this Agreement. The Commitments, with respect to the making of a Defaulting Lender’s the Loans (and not with respect to the obligations of the Lenders to convert or continue any Loans), shall not be paid expire on the last day of the Commitment Period (regardless of the failure of the Borrower to such Defaulting Lender and shall be held uninvested by request Borrowings or the Agent and either applied against failure of the purchase price of such Loans under Borrower to fully utilize the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultCommitments).

Generally. If for any reason any Lender (a “"Defaulting Lender”") shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two five (5) Business Days after notice from the Administrative Agent, then, in addition to the rights and remedies that may be available to the Agent Administrative Agent, the Issuing Bank, or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s 's right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Lenders or Supermajority Lenders, shall be suspended during the pendency of such failure or refusal. If for any reason a Lender is a Defaulting Lender because it has failed fails to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent Administrative Agent, the Issuing Bank or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. The Administrative Agent shall give the Borrower prompt notice of the failure of any Lender to make available to the Administrative Agent the proceeds of any Loan required to be made available by such Lender. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s 's Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s 's curing of its default. Notwithstanding anything to the contrary contained herein, the remedies set forth in this Section 3.9(a) will not limit Borrower’s rights and remedies at law or in equity with respect to a Defaulting Lender.

Generally. If for (a) The Lessee agrees to indemnify each Indemnitee against and agrees to protect, defend, save and keep harmless each Indemnitee from any reason and all liabilities, obligations, losses, damages (including if, as a result of an Indenture Event of Default described in Section 7.01(a)(i) of the Indenture, the Indenture Trustee shall have sold all or any Lender portion of the Indenture Estate and the proceeds thereof were less than an amount equal to accrued and unpaid Basic Rent on the date of sale plus the Stipulated Loss Value as of such date, damages equal to such shortfall together with interest thereon to the extent permitted by law at the Debt Rate until such shortfall is paid in full; it being understood that any such damages are payable to the Owner Trustee or (to the extent assigned to the Indenture Trustee and subject to the Lien of the Indenture) to the Indenture Trustee and provided, that any amount so recovered as damages shall be deemed to be a “Defaulting Lender”) payment by the Lessee of Basic Rent, Stipulated Loss Value or interest thereon due pursuant to the Lease and shall fail or refuse to perform any of its satisfy the Lessee's obligations under this Agreement the Lease to the extent of such recovery), penalties, claims, actions, suits, costs, disbursements and expenses (including reasonable legal fees and expenses (including, without limitation, the allocated reasonable costs and expenses of internal counsel to the Owner Participant) and all costs and expenses relating to amendments, supplements, adjustments, consents, refinancings and waivers under the Operative Agreements except as otherwise provided in Section 10.01(d)(i) or Article 15 hereof) of every kind and nature (whether based on negligence, warranty, absolute, strict or product liability or any other Loan Document to theory of liability) (whether or not any of the transactions contemplated by this Agreement are consummated) (individually, an "Expense," collectively, "Expenses"), which it is a party within the time period specified for performance of such obligation ormay be imposed on, if no time period is specified, if such failure incurred or refusal continues for a period of two Business Days after notice from the Agent, thensuffered by or asserted against any Indemnitee, in addition to the rights and remedies that may be available to the Agent any way relating to, based on or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect arising out of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default.:

Generally. For so long as (x) the Loan funded on the Closing Date remains outstanding or (y) following any conversion of the Loan, Lender and its Permitted Transferees continue to have record and beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of at least 10% of the outstanding Common Shares of the Borrower (in each case, the “Nomination Right Condition”), Lender and its Permitted Transferees, if any, shall have the right to designate two persons for appointment to the Supervisory Board of Directors (an “Lender Nominee”), at each annual general meeting of shareholders of the Borrower in which one or more members of the Supervisory Board of Directors are up for appointment or re-appointment. If Lender and its Permitted Transferees, if any, have the right to so designate one or two Lender Nominees in a given year, the Supervisory Board of Directors shall upon each such designation having been made nominate each Lender Nominee so designated for appointment or re-appointment, as applicable, by the general meeting of shareholders of the Borrower to the Supervisory Board of Directors in accordance with the Articles of Association and Dutch law. If, following appointment or re-appointment to the Supervisory Board of Directors, a Lender Nominee resigns, is removed, is not re-appointed or is otherwise unable to serve for any reason any and Lender (a “Defaulting Lender”) shall fail or refuse to perform any of and its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation orPermitted Transferees, if no time period is specifiedany, still have the right to designate a Lender Nominee, then Lender and its Permitted Transferees, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to or to direct any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lendersany, shall be suspended during entitled to designate a replacement Xxxxxx Xxxxxxx, and the pendency Supervisory Board of Directors shall upon such failure or refusal. If a designation nominate the Lender is a Defaulting Lender because it has failed to make timely payment Nominee for appointment by the general meeting of shareholders to the Agent Supervisory Board of any amount required Directors in accordance with the Articles of Association and Dutch law. In the event that Lender and its Permitted Transferees, if any, cease to be paid satisfy either Nomination Right Condition, if requested by the Supervisory Board of Directors, Lender and its Permitted Transferees, if any, shall use reasonable efforts to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction Xxxxxx Nominee resign as a member of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court Supervisory Board of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultDirectors.

Generally. If for Anything contained herein to the contrary notwithstanding, (i) to the extent permitted by applicable Law, until such time as the Default Excess with respect to such Defaulting Lender shall have been reduced to zero, any reason any Lender (a “Defaulting Lender”) shall fail prepayment of the Loans shall, if the Tranche A Borrowers, TCCI or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the Tranche C Borrower, as applicable, so direct at the time period specified for performance of making such obligation orprepayment, if no time period is specified, be applied to the Loans of other Applicable Tranche Lenders as if such failure Defaulting Lender had no Tranche A Loans, Tranche B Loans or refusal continues for a period of two Business Days after notice from the AgentTranche C Loans, thenas applicable, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, outstanding; (ii) such Defaulting Lender’s right unused Aggregate Commitments shall be excluded for purposes of calculating the facility fee payable to participate Lenders pursuant to Section 2.8(a) in respect of any day during any Default Period with respect to such Defaulting Lender, and such Defaulting Lender shall not be entitled to receive any facility fee with respect to its unused Commitment(s) pursuant to Section 2.8(a) for any Default Period with respect to such Defaulting Lender; and (iii) the administration aggregate amount of the Tranche A Loans, this Agreement Tranche B Loans and the other Loan Documents, including without limitation, Tranche C Loans as at any right to vote in respect of, to consent to or to direct any action or inaction date of the Agent or to be taken into account in the calculation of the Requisite Lenders, determination shall be suspended during the pendency calculated as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender. No Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this Section 2.17(a), performance by any Borrower or any Lender of its obligations hereunder shall not be excused or otherwise modified as a result of any failure or refusal. If a Lender is by a Defaulting Lender because it has failed to make timely payment to fund or the Agent operation of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periodsthis Section 2.17(a), . The rights and remedies against a Defaulting Lender under this Section 2.17(a) are in addition to other rights and remedies which that the Agent or the Borrower may have under the immediately preceding provisions or otherwiseBorrowers, the 50 Toyota – Five Year Credit Agreement (2021) Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit Lender may have against such Defaulting Lender in a court of competent jurisdiction with respect to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultDefaulted Loan.

Generally. If Except as otherwise provided in this Agreement, the following procedures shall be applicable with respect to indemnification for third party Claims. Promptly after receipt by the party seeking indemnification hereunder (hereinafter referred to as the "Indemnitee") of notice of the commencement of any reason action or the assertion of any Lender Claim, liability or obligation by a third party (a “Defaulting Lender”whether by legal process or otherwise), against which Claim, liability or obligation another party to this Agreement (hereinafter the "Indemnitor") shall fail is, or refuse to perform any of its obligations may be, required under this Agreement to indemnify such Indemnitee, the Indemnitee shall, if a claim thereon is to be, or any other Loan Document to which it is may be, made against the Indemnitor, immediately notify the Indemnitor in writing of the commencement or assertion thereof and give the Indemnitor a party within the time period specified for performance copy of such Claim or process and all legal pleadings. The Indemnitee's failure to give timely notice as required by this Section 11.5(a) shall not serve to eliminate or limit the Indemnitor's obligation or, if no time period is specified, if to indemnify the Indemnitee unless such failure prejudices the rights of the Indemnitor, and then only to the extent of such prejudice. Moreover, the Indemnitee shall have the right to take any actions or refusal continues for a period steps it deems reasonable to avoid the occurrence of two Business Days after notice from the Agent, then, in addition any prejudice to the rights of the Indemnitee. The Indemnitor shall have the right to assume the defense of such action with counsel of reputable standing unless with respect to such action (A) injunctive or equitable remedies have been sought therein in respect of the Indemnitee or its business or (B) such action is for an alleged amount of less than Five Thousand Dollars ($5,000); provided, that the Indemnitee and remedies that may be available counsel to the Agent or Indemnitee shall have the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration defense of any and all Claims pursuant to the provisions of Section 11.5(b) hereof. The Indemnitor and the Indemnitee shall reasonably cooperate in the defense of such Claims. If the Indemnitee shall be required by judgment or a settlement agreement to pay any amount in respect of any obligation or liability against which the Indemnitor has agreed to indemnify the Indemnitee under this Agreement, the Indemnitor shall immediately pay such amount to the Indemnitee in order to enable the Indemnitee to make such payment, and otherwise shall promptly reimburse the Indemnitee in an amount equal to the amount of such payment, in either case, plus all reasonable out-of-pocket expenses (including legal fees and expenses) incurred by such Indemnitee at the specific request of the LoansIndemnitor, as provided above, or as otherwise authorized by Section 11.5(b) hereof, in connection with such obligation or liability subject to this Agreement Article XI. In the alternative, in the event the Purchaser or any of its Affiliates is the Indemnitee, and to the extent there are Escrow Funds remaining in the Escrow Account at such time, the Indemnitor and the other Loan DocumentsIndemnitee shall jointly instruct the Escrow Agent, including without limitationin writing, to make such payment and reimbursement from and out of the Escrow Account. No Indemnitor, in the defense of any such Claim, shall, except with the consent of the Indemnitee, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee of a release from all liability with respect to such Claim. In the event that the Indemnitor does not accept the defense of any matter for which it is entitled to assume such defense as provided in this Section 11.5(a), the Indemnitee shall have the full right to vote in respect of, to consent to or to direct defend against any action or inaction of the Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights Claim and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from settle or agree to pay in full such Defaulting Lender on such delinquent payment for the period from the date on Claim in its sole discretion. With respect to any matter as to which the payment was due until Indemnitor is not entitled to assume the date on defense pursuant to the terms of this Section 11.5(a), the Indemnitee shall not enter into any settlement for which an indemnification Claim will be made hereunder without the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction approval of the defaulted payment and any related interestIndemnitor, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans which shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaultunreasonably withheld.

Generally. If for any reason any Lender (a “Defaulting Lender”) (i) shall fail or refuse to perform any of its obligations under this Agreement or any other Loan Document to which it is a party within the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from Administrative Agent, or (ii) shall be deemed insolvent or becomes the Agentsubject of a bankruptcy or insolvency proceeding, then, in addition to the rights and remedies that may be available to the Administrative Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement Agreement, and the other Loan Documents, including without limitation, any right to vote in respect of, to consent to to, or to direct any action or inaction of the Administrative Agent or to be taken into account in the calculation of the Requisite Lenders, shall be suspended during the pendency of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Administrative Agent of any amount required to be paid to the Administrative Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Administrative Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Administrative Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, and (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interestDocument. Any amounts received by the Administrative Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Administrative Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its default. Borrower shall not have any liability in respect of such action by Administrative Agent.

Generally. If for The Borrower hereby authorizes the Lender to disburse the proceeds of any reason any Loan made by the Lender (a “Defaulting Lender”) shall fail or refuse to perform any of its obligations Affiliates pursuant to the Loan Documents as requested by an authorized representative of the Borrower to any of the accounts designated in the Transfer Authorizer Designation Form. The Borrower agrees to be bound by any transfer request: (i) authorized or transmitted by the Borrower; or (ii) made in the Borrower’s name by an authorized representative specified on the Transfer Authorizer Form and accepted by the Lender in good faith and in compliance with this Section 2.9., even if not properly authorized by the Borrower. The Borrower further agrees and acknowledges that the Lender may rely solely on any bank routing number or identifying bank account number or name provided by the Borrower to effect a wire of funds transfer even if the information provided by the Borrower identifies a different bank or account holder than named by the Borrower. The Lender is not obligated or required in any way to take any actions to detect errors in information provided by the Borrower. If the Lender takes any actions in an attempt to detect errors in the transmission or content of transfer or requests or takes any actions in an attempt to detect unauthorized funds transfer requests, the Borrower agrees that no matter how many times the Lender takes these actions the Lender will not in any situation be liable for failing to take or correctly perform these actions in the future and such actions shall not become any part of the transfer disbursement procedures authorized under this Agreement or any other Loan Document to which it is a party within provision, the time period specified for performance of such obligation or, if no time period is specified, if such failure or refusal continues for a period of two Business Days after notice from the Agent, then, in addition to the rights and remedies that may be available to the Agent or the Borrower under this Agreement or Applicable Law, such Defaulting Lender’s right to participate in the administration of the Loans, this Agreement and the other Loan Documents, including without limitation, or any right agreement between the Lender and the Borrower. The Borrower agrees to vote in respect of, to consent to or to direct notify the Lender of any action or inaction of the Agent or to be taken into account errors in the calculation transfer of any funds or of any unauthorized or improperly authorized transfer requests within 14 days after the Requisite Lenders, shall be suspended during Lender’s confirmation to the pendency Borrower of such failure or refusal. If a Lender is a Defaulting Lender because it has failed to make timely payment to the Agent of any amount required to be paid to the Agent hereunder (without giving effect to any notice or cure periods), in addition to other rights and remedies which the Agent or the Borrower may have under the immediately preceding provisions or otherwise, the Agent shall be entitled (i) to collect interest from such Defaulting Lender on such delinquent payment for the period from the date on which the payment was due until the date on which the payment is made at the Federal Funds Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted payment and any related interest, any amounts otherwise payable to such Defaulting Lender under this Agreement or any other Loan Document and (iii) to bring an action or suit against such Defaulting Lender in a court of competent jurisdiction to recover the defaulted amount and any related interest. Any amounts received by the Agent in respect of a Defaulting Lender’s Loans shall not be paid to such Defaulting Lender and shall be held uninvested by the Agent and either applied against the purchase price of such Loans under the following subsection (b) or paid to such Defaulting Lender upon the Defaulting Lender’s curing of its defaulttransfer.