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Unless and until the Discharge of ABL Obligations has occurred, the ABL Collateral Agent and the other ABL Claimholders have the sole and exclusive right, subject to the rights of the ABL Grantors under the ABL Loan Documents, to adjust settlement for any insurance policy covering the ABL Priority Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding (or any deed in lieu of condemnation) affecting the ABL Priority Collateral. Unless and until the Discharge of ABL Obligations has occurred, and subject to the rights of the ABL Grantors under the ABL Loan Documents, all proceeds of any such policy and any such award (or any payments with respect to a deed in lieu of condemnation) if in respect of the ABL Priority Collateral shall be paid to the ABL Collateral Agent for the benefit of the ABL Claimholders pursuant to the terms of the ABL Loan Documents (including for purposes of ABL Specific Cash Collateral) and thereafter, if a Discharge of ABL Obligations has occurred, and subject to the rights of the ABL Grantors under the Term Loan Documents, the balance of such proceeds shall be paid to the Term Loan Collateral Agent for the benefit of the Term Loan Claimholders to the extent required under the Term Loan Documents and then, if a Discharge of Term Loan Obligations has occurred, any remaining balance shall be paid to the ABL Grantors, their successors or assigns from time to time, or to whomever may be lawfully entitled to receive the same. Until the Discharge of ABL Obligations has occurred, if the Term Loan Collateral Agent or any other Term Loan Claimholder shall, at any time, receive any proceeds of any such insurance policy or any such award or payment in respect of ABL Priority Collateral in contravention of this Agreement, then it shall segregate and hold in trust and forthwith pay such proceeds over to the ABL Collateral Agent in accordance with the terms of Section 4.2.

51Insurances

This Note shall be governed by and construed and enforced in accordance with the internal laws of the State of Nevada without regard to the principles of conflicts of law thereof.

47Governing Laws

Tenant will not cause or permit any mechanic’s, materialman’s or similar liens or encumbrances to be filed or exist against the Premises or the Building or Tenant’s interest in this Lease in connection with work done under this Article 5 or in connection with any other work, and Tenant agrees to defend, indemnify and hold harmless Landlord from and against any such lien or claim or action thereon, together with costs of suit and reasonable attorneys’ fees incurred by Landlord in connection with any such claim or action. Tenant shall remove any such lien or encumbrance by bond or otherwise within twenty (20) days from the date of receipt of notice of its existence. If Tenant fails to do so, Landlord may, without being responsible to investigate the validity or lawfulness of the lien, pay the amount or take such other action as Landlord deems necessary to remove any such lien or encumbrance or require that Tenant deposit with Landlord in cash and lawful money of the United States, one hundred ten percent (110%) of the amount of such claim, which sum may be retained by Landlord until such claim shall have been removed of record or until judgment shall have been rendered on such claim and such judgment shall have become final, at which time Landlord shall have the right to apply such deposit in discharge of the judgment on said claim and any costs, including attorneys’ fees incurred by Landlord, and shall remit the balance thereof to Tenant. The amounts so paid and costs incurred by Landlord shall be deemed Additional Rent under this Lease and payable in full upon demand, but shall be applied only to the lien or judgment in question, and any excess will be refunded to Tenant.

57Liens

As of the Closing Date, Holdings has no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13 , and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable and are owned in the amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens except those created under the Collateral Documents or the ABL Documents. Set forth on Part (b) of Schedule 5.13 is a complete and accurate list of all Loan Parties, showing as of the Closing Date (as to each Loan Party) the jurisdiction of its incorporation, the address of its principal place of business and its U.S. taxpayer identification number. The copy of the charter of each Loan Party and each amendment thereto provided pursuant to Section 4.01(a)(vii) is a true and correct copy of each such document, each of which is valid and in full force and effect.

83Subsidiaries

Each Party irrevocably and unconditionally waives any right it may have to a trial by jury for any court proceeding arising out of or relating to this Agreement or the transactions contemplated hereby for which a Party may bring such a court proceeding.

96Waiver Of Jury Trials

Payment shall be made within 60 days after the Change of Control date (regardless of whether the Participant is employed after the Change of Control).

68Payments

Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided the Purchaser or its agents or counsel with any information that it believes constitutes or might constitute material, non-public information. The Company understands and confirms that the Purchaser will rely on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchaser regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The press releases disseminated by the Company preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.

31Disclosures

The Closing shall take place at the offices of Proskauer Rose LLP, 2049 Century Park East, Suite 3200, Los Angeles, CA 90067 at 10:00 a.m. (local time) on the date hereof, subject to the satisfaction or, to the extent permitted, waiver of the conditions set forth in ARTICLE V (other than those conditions that require delivery of a document or certificate or the taking of an action at the Closing, but subject to the satisfaction or, to the extent permitted, waiver of those conditions at the Closing), or such other date or at such other time or place as the parties may mutually agree in writing.

18Closings

The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. The Recitals are incorporated by reference and made a part of this Agreement.

23Construction

This Release shall be governed by, and enforced in accordance with, the laws of the State of Michigan without regard to the application of the principles of conflicts of laws.

47Governing Laws

This Agreement represents the entire agreement and understanding b e tween the Company and Executive concerning the subject matter of this Agreement and Executive's employment with and separation from the Company and the events leading thereto and associated therewith, and supersedes and replaces any and all prior agreements and understandings concerning the subject matter of this Agreement and Executive's relation s hip with the Company, with the exception of the Confidentiality Agreement and the Stock Agreements .

38Entire Agreements

Effective February 1st, your base salary will be $335,000 per year payable on a semi-monthly basis in accordance with ING regular payroll practices.

11Base Salary

In the event that any provision of this Agreement should be held to be invalid or unenforceable, each and every other provision of this Agreement shall remain in full force and effect. Further, if any provision of this Agreement is found to be invalid or unenforceable, such provision shall be modified as necessary to permit this Agreement to be upheld and enforced to the maximum extent permitted by law. (iii) Successors and Assigns . This Agreement inures to me and to the benefit of the Company and its successors and assigns. (v) Amendment/Waiver . No amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed by each of the parties hereto.

79Severability

This Agreement and the Indemnification Agreement between the Company and the Executive with the same date hereof contains the entire understanding between the parties hereto with respect to the subject matter hereof and shall not be modified in any manner except by instrument in writing signed, by or on behalf of, the parties hereto. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto.

38Entire Agreements

The Financial Statements of the Loan Parties and their respective Subsidiaries which have been delivered to Agent and the Lenders (i) are in accordance with the Books and Records of the Loan Parties and their respective Subsidiaries, which have been maintained in accordance with good business practice; (ii) have been prepared in conformity with GAAP (other than, with respect to interim Financial Statements, the absence of footnotes and normal year-end adjustments); and (iii) fairly present in all material respects the consolidated financial position of the Loan Parties and their respective Subsidiaries as of the dates presented therein and the results of operations, cash flows, and, if applicable stockholders’ equity, for the periods presented therein. As of the Closing Date, none of the Loan Parties nor any of their respective Subsidiaries has any contingent obligations, liability for taxes or other outstanding obligations which are material in the aggregate, except as disclosed in the most recent audited Financial Statements (including the notes thereto) furnished by Borrower to the Lenders prior to the date hereof.

43Financial Statements

The execution, delivery and performance by each Loan Party of this Amendment (i) are within the power and authority of such Loan Party and have been duly authorized by all necessary action, (ii) do not and will not contravene any of its Governing Documents, (iii) do not and will not result in or require the creation of any Lien (other than pursuant to any Loan Document) upon or with respect to any of its properties, (iv) do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any permit, license, authorization or approval applicable to its operations or any of its properties, and (v) do not contravene any applicable Requirement of Law or any Contractual Obligation binding on or otherwise affecting it or any of its properties except, in the case of clause (iv), to the extent where such contravention, default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal could not reasonably be expected to have a Material Adverse Effect.

10Authorizations

The Participant understands that unless a proper and timely Section 83(b) election has been made as further described below, generally under Section 83 of the Code, at the time the Restricted Shares vest, the Participant will be obligated to recognize ordinary income and be taxed in an amount equal to the Fair Market Value as of the date of vesting for the Restricted Shares then vesting. The Participant has been informed that, with respect to the grant of the Restricted Stock Award, an election may be filed by the Participant with the Internal Revenue Service, within 30 days of the date of grant, electing pursuant to Section 83(b) of the Code to be taxed currently on the Fair Market Value of the Restricted Shares on the date of grant. The Participant acknowledges that it is the Participant’s sole responsibility to timely file the election under Section 83(b) of the Code. If the Participant makes such election, the Participant shall promptly provide the Company a copy and the Company may require at the time of such election an additional payment for withholding tax purposes based on the Fair Market Value of the Restricted Shares as of the date of grant.

99Withholdings

This Security Agreement may be executed by one or more of the parties to this Security Agreement on any number of separate counterparts (including by facsimile or other electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument. A set of the copies of this Security Agreement signed by all the parties shall be lodged with the Collateral Agent and the Borrower.

26Counterparts

Executive acknowledges that a violation by Executive of any of the covenants contained in Section 5, 6, 7, 8 or 9 would cause irreparable damage to the Company in an amount that would be material but not readily ascertainable, and that any remedy at law (including the payment of damages) would be inadequate. Accordingly, Executive agrees that, notwithstanding any provision of this Agreement to the contrary, the Company shall be entitled (without the necessity of showing economic loss or other actual damage and without the requirement to post bond) to injunctive relief (including temporary restraining orders, preliminary injunctions and/or permanent injunctions) in any court of competent jurisdiction for any actual or threatened breach of any of the covenants set forth in Section 5, 6, 7, 8 or 9 in addition to any other legal or equitable remedies it may have. The preceding sentence shall not be construed as a waiver of the rights that the Company may have for damages under this Agreement or otherwise, and all of the Company’s rights shall be unrestricted, and notwithstanding the fact that any such provision may be determined not to be subject to specific performance, the Company will nevertheless be entitled to seek to recover monetary damages as a result of Executive’s breach of such provision.

75Remedies

Neither Party may assign its rights and obligations under this Agreement without the other Party’s prior written consent, except that (a) either Party may assign its rights and obligations under this Agreement or any part hereof to one or more of its Affiliates without the consent of the other Party; and (b) Marathon may assign this entire Agreement without Faes’ prior written consent to a Third Party acquirer, successor or designee (i) to all or substantially all of Marathon’s business or assets or (ii) to all of Marathon’s rights with respect to the Marathon Suspension Product in the Territory, provided, however, that the assigning Party shall remain responsible for the assignee’s full and accurate performance of its pre and post-assignment obligations under this Agreement. Any attempted assignment in contravention of the foregoing shall be void.

7Assignments

Seller hereby assigns, sells and transfers to Buyer, on the terms specified in the Purchase Agreement, all of Seller’s right, title and interest in and to the Lease and Service Contracts.

7Assignments

Each of the Borrower and its Restricted Subsidiaries (i) is duly organized, validly existing and in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of the jurisdiction of its organization or incorporation, and (ii) has the requisite power and authority to conduct its business as it is presently being conducted, except in the case of clause (i) (other than with respect to any Loan Party), where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. The Borrower and its Restricted Subsidiaries are qualified and licensed in all jurisdictions where they are required to be so qualified or licensed to operate their business and where the failure to so qualify or be licensed, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.

66Organizations

The provisions of Sections 1.3, 15.5, 15.6, 15.7, 15.11, 15.12, 15.15 and 15.16 of the Credit Agreement are incorporated herein by reference, mutatis mutandis .

59Miscellaneous

Authority and Enforceability .

66Organizations

This Perfection Certificate may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one Perfection Certificate. Delivery of a counterpart by facsimile or pdf electronic transmission shall constitute delivery of an original.

26Counterparts

The provisions of the SSP may be amended at any time and from time to time by the Compensation Committee for any reason without either the consent of or prior notice to any Participant; provided, however , that no such amendment shall serve to reduce the benefit that has accrued on behalf of a Participant as of the effective date of the amendment. Notwithstanding the foregoing, the Administrative Committee may adopt any amendment to the SSP as it shall deem necessary or appropriate to (i) maintain compliance with current laws and regulations; (ii) correct errors and omissions in the SSP document; and (iii) facilitate the administration and operation of the SSP.

2Amendments

When a reference is made in this Agreement to a Section, such reference shall be to a Section to this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Wherever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The phrases “the date of this Agreement”, “the date hereof” and terms of similar import, unless the context otherwise requires, shall be deemed to refer to January 13 , 2017.

55Interpretations

Buyer does not have and has never had employees. Buyer does not sponsor, maintain or contribute to an Employee Plan.

39Erisa

Interest on the Note shall be paid semi-annually, on the last day of June and December in each year, beginning June 30, 2017, and continuing until the Note is finally paid. The total outstanding principal balance hereof, together with accrued and unpaid interest, shall be paid on December 31, 2018. Interest must be paid in cash.

68Payments

This Agreement is personal in nature. Neither party may assign this Agreement or any of its rights hereunder nor delegate or otherwise transfer any of its obligations in connection herewith without the, prior written consent of the other party hereto. This Agreement shall inure to the benefit of and be binding on the parties hereto and their respective successors, legal representatives, heirs, administrators, executors and permitted assigns.

7Assignments

This Agreement constitutes the entire agreement, and supersedes all other prior agreements and understandings, both written and oral, between the parties, or any of them, with respect to the subject matter hereof and is not intended to and shall not confer upon any Person other than the parties hereto any rights or remedies hereunder.

38Entire Agreements

Capitalized terms used but not defined herein (including in the Preliminary Statements) shall have the meanings assigned to such terms in the Credit Agreement.

28Defined Terms

Each of the Lender Parties and the Funding Agents hereby designates and appoints Coöperatieve Rabobank U.A., New York Branch, as the Administrative Agent hereunder, and hereby authorizes the Administrative Agent to take such actions as agent on their behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of this Agreement, together with such powers as are reasonably incidental thereto. The Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender Party or any Funding Agent, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of the Administrative Agent shall be read into this Agreement or otherwise exist for the Administrative Agent. In performing its functions and duties hereunder, the Administrative Agent shall act solely as agent for the Lender Parties and the Funding Agents and does not assume, nor shall it be deemed to have assumed, any obligation or relationship of trust or agency with or for the Co-Issuers or any of its successors or assigns. The provisions of this Article (other than the rights of the Co-Issuers set forth in Section  5.07 ) are solely for the benefit of the Administrative Agent, the Lender Parties and the Funding Agents, and the Co-Issuers shall not have any rights as a third-party beneficiary of any such provisions. The Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, exposes the Administrative Agent to personal liability or that is contrary to this Agreement or any Requirement of Law. The appointment and authority of the Administrative Agent hereunder shall terminate upon the indefeasible payment in full of the Series 2017-1 Class A-1 Notes and all other amounts owed by the Co-Issuers hereunder to the Administrative Agent, all members of the Investor Groups, the Swingline Lender and the L/C Provider (the “ Aggregate Unpaids ”) and termination in full of all Commitments and the Swingline Commitment and the L/C Commitment.

10Authorizations

This Agreement is personal in nature and may not be assigned by Employee.

7Assignments

Assuming that the consents referred to in clauses (a) and (b) of Section 5.5 are obtained, the execution and delivery and performance by such Party of this Agreement, the Approved Plan and each other Restructuring Document to which such Party is a party, the compliance by such Party with all of the provisions hereof and thereof and the consummation of the transactions contemplated herein and therein (a) will not conflict with, or result in a breach or violation of, any of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both), or result in the acceleration of, or the creation of any Lien under, any Contract to which such Party is a party or by which such Party is bound or to which any of the properties or assets of such Party are subject, (b) will not result in any violation of the provisions of the certificate of incorporation or bylaws (or comparable constituent documents) of such Party and (c) will not result in any material violation of any Law or Order applicable to such Party or any of its properties, except in each of the cases described in clauses (a) or (c) , for any conflict, breach, violation, default, acceleration or Lien which would not reasonably be expected, individually or in the aggregate, to prohibit, materially delay or materially and adversely impact such Party’s performance of its obligations under this Agreement.

61No Conflicts

A Participant’s annual Director Fees Election will terminate on (i) the date the Participant becomes Disabled, or (ii) the date the Participant receives a withdrawal for an Unforeseeable Emergency under Section 5.9.

88Terminations

Grillo acknowledges that he is not relying, and has not relied, on any representation or statement by the Company with regard to the subject matter or terms of this Release, except to the extent set forth fully in this Release. This Release constitutes the entire agreement between Grillo and the Company with respect to the subject matter of this Release, and supersedes any and all other agreements, understandings or discussions between Grillo and the Company with respect to the subject matter of this Release, other than the Separation Agreement.

38Entire Agreements

Except for earlier termination as hereinafter provided for, the term of the Executive’s employment hereunder shall be for a period commencing on January 1, 2017 (the “Commencement Date”) and continuing through January 1, 2019, the second anniversary of the Commencement Date. Notwithstanding the foregoing, the Executive’s employment by the Company hereunder may be earlier terminated, subject to Section 9 hereof, upon the occurrence of any one of the following events: (i) the Company’s decision to terminate the Executive, (ii) the Executive’s decision to voluntarily resign or retire at any time or (iii) the parties’ mutual agreement in writing to terminate the Executive’s employment hereunder at any time. The period of time between the Commencement Date and termination of the Executive’s employment hereunder shall be referred to herein as the “Employment Period”.

89Terms

Each party represents and warrants to the other that neither of them has contracted with any broker in connection with the negotiations of the terms of this Agreement or the execution thereof.

15Brokers

This Agreement shall be binding and deemed effective when executed by Obligors and the Secured Party.

34Effectiveness

Effective May 30, 2017, and subject to the terms and conditions set forth in the Incentive Plan, the Compensation Committee hereby grants to the Optionee, not in lieu of salary or any other compensation for services, the right and option (hereinafter referred to as the “Option”) to purchase from the Company ____ shares of the Company’s Common Stock, subject to the terms and conditions hereinafter set forth. The Option granted hereby is sometimes referred to herein as the “Option” or “Options,” when referring to exercise or vesting of a portion of the Option or otherwise. The Option granted hereby is NOT intended to qualify as an Incentive Stock Option. The term of the Option granted hereby shall be five years from the date hereof.

89Terms

The Executive agrees not to make any adverse or disparaging comments (oral or written, including, without limitation, via any form of electronic media) about the Company, its affiliates, or any of their respective officers, directors, managers or employees which may tend to impugn or injure their reputation, goodwill and relationships with their past, present and future customers, employees, vendors, investors or with the business community generally. The Company agrees that its executive officers and directors shall be directed not to make any disparaging comments (oral or written, including, without limitation, via any form of electronic media) about the Executive. Nothing in this Section 10(a) is intended to prohibit, limit or prevent the Executive or the Company’s officers or directors from providing truthful testimony in a court of law, to a regulatory or law enforcement agency or pursuant to a properly issued subpoena, and such testimony will not be deemed to be a violation of this Section 10(a).

64Non-Disparagement

The Borrower has heretofore furnished to the Administrative Agent (for delivery to the Lenders) (i) the audited consolidated balance sheets of the Borrower as at January 2, 2016 and December 31, 2016 and the related audited consolidated statements of net income, comprehensive income, changes in total deficit and cash flows of the Borrower for the fiscal years ended January 2, 2016 and December 31, 2016 and (ii) the unaudited consolidated balance sheet of the Borrower as at September 30, 2017 and the related unaudited consolidated statements of net income, comprehensive income and cash flows of the Borrower for the nine months ended September 30, 2017, in each such case which have been prepared in accordance with GAAP applied consistently throughout the periods involved except to the extent provided in the notes thereto and subject, in the case of the unaudited financial information, to changes resulting from audit, normal year-end audit adjustments and to the absence of footnotes, and present fairly in all material respects the financial position and results of operations of the Borrower and its Subsidiaries, as of and for the periods ended on such dates set forth on such financial statements.

43Financial Statements

This Agreement may be executed in two or more counterparts each of which shall be deemed an original, but all of which shall together constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.

26Counterparts

The Company is and at all times has been in full compliance with all Laws, except for any instances which would not have a Material Adverse Effect. The Company has not received any notice that it is in violation of, has violated, or is under investigation with respect to, or has been threatened to be charged with, any violation of any Law.

19Compliance With Laws

Executive shall be a Executive Vice-President - Planning of the Company or such other title as designated by the Chief Executive Officer or the Company’s Board of Directors. Executive shall assume those duties on the Commencement Date.

90Titles

This Deed of Trust may be executed in any number of counterparts, each of which will for all purposes be deemed to be an original, and all of which are identical except that, to facilitate recordation, in any particular counties counterpart portions of Exhibit A hereto which describe Properties situated in counties other than the counties in which such counterpart is to be recorded may have been omitted.

26Counterparts

This Agreement may be executed in the original or by facsimile in two or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute but one and the same instrument.

26Counterparts

Except as indicated in Section 15.4 , termination of this Agreement shall be without prejudice to (i) any remedies which any Party may then or thereafter have hereunder or at law; and (ii) a Party’s right to receive any payment accrued under this Agreement prior to the termination date but which became payable thereafter; and (iii) either Party’s right to obtain performance of any obligations provided for in this Agreement which survive termination by their terms or by a fair interpretation of this Agreement.

75Remedies

Damages in the event of breach of this Agreement by a Party hereto may be difficult, if not impossible, to ascertain. Therefore, each Party, in addition to and without limiting any other remedy or right it may have, will have the right to seek a declaratory judgment and will have the right to an injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach, and enforcing specifically the terms and provisions hereof, and each of the Parties hereto hereby waives any and all defenses it may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief. The existence of this right will not preclude any Party from pursuing any other rights and remedies at law or in equity that such Party may have.

81Specific Performance

If any provision of this Agreement or the Plan or the application of any provision hereof to any person or circumstance is held to be invalid or unenforceable, the remainder of this Agreement and the Plan and the application of such provision to any other person or circumstance is not affected, and the provisions so held to be unenforceable shall be reformed to the extent (and only to the extent) necessary to make it enforceable and valid.

79Severability

Any issuance and delivery of Common Shares in connection with the Mandatory Conversion shall be made without charge to the Lenders or the Administrative Agent for any documentary, stamp or any similar issue or transfer tax in respect of the issue thereof, and the Borrower shall pay any and all documentary, stamp or similar issue or transfer taxes that may be payable in respect of the issuance or delivery of such Common Shares. Borrower shall not, however, be required to pay any such tax which may be payable in respect of any transfer involved in the issue and delivery of shares of such Common Shares in any name other than that of the Lender of the applicable portion of the Loan so converted, and, notwithstanding anything herein to the contrary, any such tax shall be payable by such Lender.

87Taxes

Schedule 4(g) sets forth a true and complete list of the name and jurisdiction of organization of each Subsidiary as well as the entire authorized and outstanding equity securities of each such Subsidiary (the “ Subsidiary Membership Interests ”). Target is the sole record and beneficial owner and holder (either directly or indirectly via a Subsidiary) of all of the Subsidiary Membership Interests, free and clear of all Liens. All of the Subsidiary Membership Interests have been duly authorized, are validly issued, fully paid, and non-assessable, have not been issued in violation of any preemptive or similar right created by statute, the certificate of formation or operating agreement of any Subsidiary, or any Contract to which any Subsidiary is a party or by which any Subsidiary is bound, and have been issued in compliance with applicable Law. Except as set forth on Schedule 4(g) , there are no (i) outstanding or authorized equity interests of any Subsidiary, options (and any shares reserved for issuance upon the exercise thereof), warrants, purchase rights, subscription rights, conversion rights, exchange rights, or other contracts or commitments that could require any Subsidiary to issue, sell, or otherwise cause to become outstanding any of its equity interests or shares convertible, exercisable for or exchangeable into equity or voting interests of such Subsidiary, or (ii) outstanding or authorized equity appreciation, phantom stock, profit participation, or similar equity-based rights with respect to any of the Subsidiary Membership Interests. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting, transfer or other rights of any of the Subsidiary Membership Interests. Neither Target nor any Subsidiary owns, and has no agreement to acquire, any capital stock of or other equity interest in any Person, except for the ownership of the Subsidiary Membership Interests reflected on Schedule 4(g) or as set forth on Schedule 4(g) .

83Subsidiaries

Each Borrower shall have received, on reasonably satisfactory terms, all consents and authorizations required pursuant to any Contractual Obligation with any other Person and shall have obtained all permits of, and effected all notices to and filings with, any Governmental Authority, in each case, as may be necessary to allow each Borrower lawfully to execute, deliver and perform, in all material respects, its obligations hereunder and under the other Loan Documents to which it is, or shall be, a party and each other agreement or instrument to be executed and delivered by it pursuant thereto or in connection therewith.

22Consents

The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither the Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section 11.06(b) , (ii) by way of participation in accordance with the provisions of Section 11.06(d) , or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 11.06(f) , (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d)  of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

84Successors

Except with respect to (a) the covenants of Buyer, Seller and the Primary Shareholder which are intended to survive the Closing, (b) Seller’s and the Primary Shareholder’s representations provided for in Section 5.2(a),   5.4  and 5.8 , which survive indefinitely, (c) Seller’s and Primary Shareholder’s representations provided for in Sections 5.6, 5.11, 5.14, 5.16 and 5.22 , which survive until the applicable statute of limitations expires with respect to claims arising under such Sections, and (d) Buyer’s representation provided for in Section 6.2 , which shall survive indefinitely, the representations and warranties of each of the parties hereto shall survive the Closing for a period of twenty-four (24) months.

98Warranties

This Amendment shall be subject to the provisions of Sections 17(b), 17(c), 17(d), 18 and 19 of the Guaranty Agreement, each of which is incorporated by reference herein, mutatis mutandis .

59Miscellaneous

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

96Waiver Of Jury Trials

Following the Closing, each of the parties hereto shall, and shall cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and the Ancillary Documents.

45Further Assurances

Each of Borrower, Leasehold Pledgor, each Individual Owner, each Operating Lessee and each SPC Party is duly organized, validly existing and in good standing with full power and authority to own its assets and conduct its business, and is duly qualified and in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, and each of Borrower and Leasehold Pledgor has taken all necessary action to authorize the execution, delivery and performance of this Agreement and the other Loan Documents by it, and has the power and authority to execute, deliver and perform under this Agreement, the other Loan Documents and all the transactions contemplated hereby. Each of Borrower, Leasehold Pledgor, each Individual Owner, Operating Lessee and each SPC Party is, and at all times since the date of its formation has been (but only to the extent that the applicable requirements set forth in Schedule V speak of a time prior to the Closing Date), a Special Purpose Bankruptcy Remote Entity. Borrower has provided Lender with true, correct and complete copies of Borrower’s, Leasehold Pledgor’s each Individual Owner’s, Operating Lessee’s and each SPC Party’s current (and since the date of its inception) organizational documents.

66Organizations

The Managing Member shall keep the Special Member reasonably informed of all material facts that would be reasonably expected to enable the Special Member to exercise its rights pursuant to this Agreement and shall make itself and the Company’s books and records reasonably available to the Special Member for such purpose. The Managing Member shall promptly deliver to the Special Member copies of all information received by the Company, the Managing Member or the board of directors of the Managing Member from Group in connection with any matter relating to Group or its Subsidiaries that requires the consent or approval of the Company pursuant to the Group LLC Agreement and is a Noteholder Protection. For purposes of this Agreement, any notice to be provided to the Special Member shall be provided at the address specified by the Special Member and in the manner set forth in Section 9.5 . The Company shall promptly provide to the Special Member any information obtained from Group pursuant to Section [14.16(b)] of the Group LLC Agreement.

65Notices

This Note shall be governed by and construed in accordance with the laws of Oregon, but giving effect to federal laws applicable to national banks, without reference to the conflicts of law or choice of law principles thereof.

47Governing Laws

This Agreement shall be governed in all respects, including validity, interpretation, and effect, by, and construed in accordance with, the laws of the State of Maryland executed and to be performed wholly within the State of Maryland, without giving effect to the choice of law or conflict of law principles thereof or of any other jurisdiction to the extent that such principles would require or permit the application of the laws of another jurisdiction.

47Governing Laws

Subject to clause (e) of the following sentence, all judicial proceedings brought against any party arising out of or relating hereto or any other Loan Documents, or any of the Obligations, shall be brought in any state or federal court of competent jurisdiction in the State, County and City of New York. By executing and delivering this Agreement, each party (subject to clause (e) of this following sentence), for itself and in connection with its properties, irrevocably (a) accepts generally and unconditionally the exclusive jurisdiction and venue of such courts (other than with respect to actions by any Agent in respect of rights under any Security Document governed by laws other than the laws of the State of New York or with respect to any Collateral subject thereto); (b) waives any defense of forum non conveniens; (c) agrees that service of all process in any such proceeding in any such court may be made by registered or certified mail, return receipt requested, to the applicable parties at its address provided in accordance with Section 9.01; (d) agrees that service as provided in clause (c) above is sufficient to confer personal jurisdiction over the applicable party in any such proceeding in any such court, and otherwise constitutes effective and binding service in every aspect and (e) agrees that Agents and Lenders retain the right to serve process in any other manner permitted by law or to bring proceedings against any Loan Party in the courts of any other jurisdiction in connection with the exercise of any rights under any Security Documents or the enforcement of any judgment.

56Jurisdictions

All issued and outstanding shares of capital stock or other equity interests of the Debtors and each of their respective Subsidiaries, as applicable, have been duly authorized and duly and validly authorized and issued, and are fully paid and nonassessable, and are not subject to any preemptive rights.  None of the Debtors or any of their respective Subsidiaries is a party to any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which obligates any of them to issue, sell or transfer, or repurchase, redeem or otherwise acquire, any shares of the capital stock or other equity interest in the Debtors or any of their Subsidiaries.

16Capitalization

The provisions of this Agreement are specifically agreed to be severable. If any part hereof is unenforceable, the remainder of the Agreement may be enforced as if such portion were not contained herein.

79Severability

This Amendment represents the entire agreement and understanding concerning the subject matter hereof among the parties hereto, and supersedes all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts concerning the subject matter hereof, whether oral or written.

38Entire Agreements

This Agreement, the other Credit Documents and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.

52Integration

The Executive’s base salary during the Employment Period shall be $340,600 per annum (the “ Base Salary ”).  The Base Salary will be payable to the Executive by the Company in regular installments in accordance with the Company’s general payroll practices.  The Executive shall receive such increases (but not decreases) in his Base Salary as the Board of Directors, or the compensation committee of the Board of Directors, may approve in its sole discretion from time to time. The Base Salary shall be reviewed at least annually.

11Base Salary

This Fourth Supplement shall be governed by, construed and enforced in accordance with the internal laws of the State of Minnesota without regard to its conflicts of laws principles.

47Governing Laws

Each of Buyers and the Deposit Escrow Agent, as applicable, shall be entitled to deduct and withhold from amounts otherwise payable under this Agreement, all amounts as are required to be deducted or withheld from such amounts under the Code, the rules and regulations promulgated thereunder, or any other provision of U.S. federal, state, local or foreign Tax or other Law. Any such withheld amounts shall be (i) timely paid or remitted to the applicable Governmental Authority, and (ii) treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.

99Withholdings

This Third Amendment and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to the conflict of laws principles thereof that would cause the application of the laws of any jurisdiction other than the State of Delaware.

47Governing Laws

Unless the context requires otherwise: (a) any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa; (b) references to Articles and Sections refer to Articles and Sections of this Agreement; (c) the terms “include,” “includes,” “including” or words of like import shall be deemed to be followed by the words “without limitation” and (d) the terms “hereof,” “herein” or “hereunder” refer to this Agreement as a whole and not to any particular provision of this Agreement. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The Managing Member has the power to construe and interpret this Agreement and to act upon any such construction or interpretation. To the fullest extent permitted by law, any construction or interpretation of this Agreement by the Managing Member, any action taken pursuant thereto and any determination made by the Managing Member in good faith shall, in each case, be conclusive and binding on all Members, each other Person who acquires an interest in a Company Interest and all other Persons for all purposes.

23Construction

The Sellers and the Buyer acknowledge that the compensation to be paid to Sellers for the Business reflects that the Business is being sold subject to the provisions of Section 7.4 , and Sellers and the Buyer agree that the provisions of Section 7.4 shall survive all Closings hereunder indefinitely.

74Releases

On or prior to each Purchase Date, the Seller shall have caused its records (including electronic ledgers) relating to each Related Consumer Loan to be conveyed by it on such Purchase Date to be clearly and unambiguously marked to reflect that such Related Consumer Loan was conveyed by it to the Debtor.

73Records

The Company may amend this Agreement at any time and from time to time; provided, however, that no amendment of this Agreement that would impair the Awardee’s rights or entitlements with respect to the Restricted Stock shall be effective without the prior written consent of the Awardee.

2Amendments

All representations, warranties, agreements and covenants contained in or made pursuant to this Agreement, or any Exhibit or Schedule hereto or thereto or any certificate delivered at the Closing, shall survive (and not be affected by) the Closing, but all claims made by virtue of such representations, warranties, agreements and covenants shall be made under, and subject to the limitations set forth in this Article VIII.

85Survival

If a Participant who holds Restricted Shares or Restricted Share Units fails to satisfy the restrictions, terms or conditions applicable to the Award, except as otherwise determined by the Committee, the Participant shall forfeit the Restricted Shares or Restricted Share Units. The Committee may at any time waive such restrictions or accelerate the date or dates on which the restrictions will lapse; however, to the extent the Restricted Shares or Restricted Share Units are intended to qualify for the Performance-Based Exception, the provisions of Section 6(d)(iv) will apply.

44Forfeitures

This Agreement, the Employee Transition Agreement between the Company and the Servicer and the Lease Agreement between the Company and the Servicer, together with the Exhibits, Schedules and Annexes hereto and thereto, supersede any other agreement, whether written or oral, that may have been made or entered into among the Parties hereto (or by any officer or employee of any such Parties) relating to the matters specified herein and therein, and constitute the entire agreement among the Parties related to the matters specified herein or therein.

38Entire Agreements

This Deed, when executed and delivered by the Company and Indemnitee in accordance with the provisions hereof, shall be a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the enforcement of creditors’ rights generally or equitable principles.

36Enforceability

Any Repurchase Document may be executed in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which shall together constitute but one and the same instrument.  The Parties agree that this Agreement, any documents to be delivered pursuant to this Agreement, any other Repurchase Document and any notices hereunder may be transmitted between them by email and/or facsimile.  The Parties intend that faxed signatures and electronically imaged signatures such as .pdf files shall constitute original signatures and are binding on all parties.

26Counterparts

All representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that Agent or any Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any loan or any fee or any other amount payable under this Agreement is outstanding and unpaid.

85Survival

This Agreement shall terminate if the Third Amendment Effective Date has not occurred on or before September 5, 2017 (or such later date as may be agreed to by the Required Lenders in writing (which may be through email)).

88Terminations

For good and valuable consideration including, but not limited to, the Acquisition and the Capital Raise, the receipt and sufficiency of which are hereby acknowledged, Assignor hereby assigns, sells and transfers to Assignee all of Assignor’s right, title and interest in and to the Assigned IP, the Intellectual Property and the Intellectual Property Rights, together with all goodwill related thereto and all rights to fully exploit, and to enforce all infringement claims in respect of any of, such Intellectual Property (the “ Assignment ”).

7Assignments

Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance with Section 9.4 of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of all actions taken pursuant to this Warrant, including in reasonable detail a description of such action and the reason therefor. Without limiting the generality of the foregoing, the Company will give written notice to the Holder (i) immediately upon any adjustment of the Exercise Price, setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least fifteen (15) days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the shares of Common Stock, (B) with respect to any grants, issuances or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property to holders of shares of Common Stock or (C) for determining rights to vote with respect to any Fundamental Transaction, dissolution or liquidation; provided in each case that such information shall be made known to the public prior to or in conjunction with such notice being provided to the Holder. It is expressly understood and agreed that the time of exercise specified by the Holder in each Exercise Notice shall be definitive and may not be disputed or challenged by the Company.

65Notices

This Agreement and its attachments represent the entire agreement regarding the subjects herein between ABG and GM and may be modified only in a writing executed by an authorized representative of each of the Parties. This Agreement governs the purchase of, and incentives provided for, 2018 Model Year vehicles. This Agreement places no obligations on either party regarding 2019 Model Year vehicles; ABG is under no obligation to submit orders for 2019 Model Year vehicles and GM is under no obligation to pay incentives on 2019 Model Year vehicles (even if ABG places early orders for such vehicles prior to the execution of a 2019 Model Year agreement). The purchase of, and incentives provided for, 2019 Model Year vehicles will be governed by a separate 2019 Model Year agreement mutually agreed upon by the parties.

38Entire Agreements

EACH GRANTOR HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT, IN EITHER CASE, SITTING IN NEW YORK COUNTY, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND EACH GRANTOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY SECURED PARTY OR GRANTOR TO BRING PROCEEDINGS IN THE COURTS OF ANY OTHER JURISDICTION.

21Consent To Jurisdiction

Each party’s obligations under this Section 5.11 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

85Survival

Except as set forth on Schedule 5.1.9 , there is no litigation, action, suit or other proceeding currently pending, or to Sellers’ Knowledge, threatened against Sellers or the Facility, at law or in equity, or before any Governmental Authority or any arbitrator. To the Sellers’ Knowledge, there is no pending investigation of Sellers or the Facility by any Governmental Agency. Sellers are not subject to any judgment, injunction, order, writ or decree of any court of Governmental Agency relating specifically to Sellers or to the ownership, operation or management of the Facility or the Business.

58Litigations

Each Lender, upon execution and delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be, represents and warrants as of the Closing Date or as of the Assignment Effective Date that (i) it is an Eligible Assignee; (ii) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Commitments or Loans, as the case may be; (iii) it will make or invest in, as the case may be, its Commitments or Loans for its own account in the ordinary course and without a view to distribution of such Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other Federal securities laws (it being understood that, subject to the provisions of this Section 10.6, the disposition of such Commitments or Loans or any interests therein shall at all times remain within its exclusive control); and (iv) it will not provide any information obtained by it in its capacity as a Lender to Borrower or any Affiliate of Borrower.

76Representations

Executive shall be entitled to paid vacation time consistent with the applicable policies of the Company as in effect from time to time.

93Vacations

In that provision Agreement becomes declared by competent jurisdiction illegal, unenforceable Agreement shall continue full force and effect without said provision; provided that such shall effective materially changes economic benefit Agreement party.

79Severability

This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.

26Counterparts

This Guaranty may be executed in any number of counterparts, each of which shall be effective only upon delivery and thereafter shall be deemed an original, and all of which shall be taken to be one and the same instrument, for the same effect as if all parties hereto had signed the same signature page.  Any signature page of this Guaranty may be detached from any counterpart of this Guaranty without impairing the legal effect of any signatures thereon and may be attached to another counterpart of this Guaranty identical in form hereto but having attached to it one or more additional signature pages.  It shall not be necessary in making proof of this Guaranty to produce or account for more than one such counterpart for each of the parties hereto. Delivery by facsimile or electronic transmission by any of the parties hereto of an executed counterpart of this Guaranty shall be as effective as an original executed counterpart hereof and shall be deemed a representation that an original executed counterpart hereof will be delivered. Each counterpart hereof shall be deemed to be an original and shall be binding upon all parties, their successors and assigns.

26Counterparts

Notices shall be given under this Assignment Agreement in the manner set forth in the Credit Agreement. For the purpose hereof, the addresses of the parties hereto (until notice of a change is delivered) shall be the address set forth under each party’s name on the signature page(s) hereof.

65Notices

The Company and its subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers, in such amounts and covering such risks as is generally maintained by companies of established repute engaged in the same or similar business, and all such insurance is in full force and effect.  The Company has no reason to believe that it or any of its subsidiaries will not be able (A) to renew its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Effect.  Neither of the Company nor any of its subsidiaries has been denied any insurance coverage which it has sought or for which it has applied.

51Insurances

Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Credit Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Credit Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent and each Credit Party shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Credit Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Credit Agreement and to approve any amendment, modification or waiver of any provision of this Credit Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso in Section 10.2(b) that directly affects such Participant. Subject to paragraph (e) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.5 , 3.6 and 3.7 (subject to the requirements and limitations therein, including the requirements under Section 3.7(f) , it being understood that the documentation required under such section shall be delivered to the participating Lender) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.8 as though it were a Lender, provided such Participant agrees to be subject to Section 2.10(h) as though it were a Lender.

67Participations

The provisions of this Plan shall bind and inure to the benefit of the Company and other Employer and their successors and assigns, and on the Participant and the Participant’s designated Beneficiaries.  By executing and delivering a Plan Agreement, a Participant agrees on his or her own behalf and on behalf of all Beneficiaries to be bound by the terms of the Plan and the Plan Agreement.

84Successors

Receipt by the Lender of the Parent’s most recent Quarterly Report on Form 10-Q and Annual Report on Form 10-K on file with the SEC.

43Financial Statements

Capitalized terms used herein (including in the preamble and recitals above) but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.

28Defined Terms