Exhibit 10.1


 





 



 





CREDIT AGREEMENT


 


Dated as of October 19, 2016


 


among


 


GAS NATURAL INC., an Ohio corporation,


as the Borrower,


 


BANK OF AMERICA, N.A.,

as Administrative Agent and L/C Issuer,


 


and


 


The Other Lenders Party Hereto


 


MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED


as


Sole Lead Arranger and Sole Bookrunner










 



 




     


     


    

 


TABLE OF CONTENTS


 





	Section	 	Page
	 	 	 
	ARTICLE I.	DEFINITIONS AND ACCOUNTING TERMS	1
	 	 	 
	1.01	Defined Terms	1
	1.02	Other Interpretive Provisions	25
	1.03	Accounting Terms.	26
	1.04	Rounding	26
	1.05	Times of Day; Rates	26
	1.06	Letter of Credit Amounts	27
	 	 	 
	ARTICLE II.	the COMMITMENTS and Credit Extensions	27
	 	 	 
	2.01	Loans	27
	2.02	Borrowings, Conversions and Continuations of Loans.	27
	2.03	Letters of Credit.	29
	2.04	Reserved.	37
	2.05	Prepayments.	38
	2.06	Termination or Reduction of Commitments	40
	2.07	Repayment of Loans	40
	2.08	Interest.	40
	2.09	Fees	41
	2.10	Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.	42
	2.11	Evidence of Debt.	42
	2.12	Payments Generally; Administrative Agent’s Clawback.	43
	2.13	Sharing of Payments by Lenders	45
	2.14	Reserved.	45
	2.15	Reserved.	45
	2.16	Cash Collateral.	45
	2.17	Defaulting Lenders.	46
	 	 	 
	ARTICLE III.	TAXES, YIELD PROTECTION AND ILLEGALITY	49
	 	 	 
	3.01	Taxes.	49
	3.02	Illegality	54
	3.03	Inability to Determine Rates	54
	3.04	Increased Costs; Reserves on Eurodollar Rate Loans.	55
	3.05	Compensation for Losses	56
	3.06	Mitigation Obligations; Replacement of Lenders.	57
	3.07	Survival	57
	 	 	 
	ARTICLE IV.	CONDITIONS PRECEDENT TO Credit Extensions	58
	 	 	 
	4.01	Conditions of Initial Credit Extension	58
	4.02	Conditions to all Credit Extensions	59







 




    i 


     


    

 





	ARTICLE
    V.	REPRESENTATIONS AND WARRANTIES	60
	 	 	 
	5.01	Existence, Qualification and Power	60
	5.02	Authorization; No Contravention	60
	5.03	Governmental Authorization; Other Consents	60
	5.04	Binding Effect	61
	5.05	Financial Statements; No Material Adverse Effect.	61
	5.06	Litigation	61
	5.07	No Default	62
	5.08	Ownership of Property; Liens	62
	5.09	Environmental Compliance	62
	5.10	Insurance	62
	5.11	Taxes	62
	5.12	ERISA Compliance.	62
	5.13	Subsidiaries; Equity Interests	63
	5.14	Margin Regulations; Investment Company Act.	63
	5.15	Disclosure	64
	5.16	Compliance with Laws	64
	5.17	Taxpayer Identification Number	64
	5.18	Intellectual Property; Licenses, Etc.	64
	5.19	OFAC.	65
	5.20	Anti-Corruption Laws.	65
	 	 	 
	ARTICLE VI.	AFFIRMATIVE COVENANTS	65
	 	 	 
	6.01	Financial Statements	65
	6.02	Certificates; Other Information	66
	6.03	Notices	68
	6.04	Payment of Obligations	69
	6.05	Preservation of Existence, Etc.	69
	6.06	Maintenance of Properties	69
	6.07	Maintenance of Insurance	69
	6.08	Compliance with Laws	69
	6.09	Books and Records	69
	6.10	Inspection Rights	70
	6.11	Use of Proceeds	70
	6.12	Additional Guarantors	70
	6.13	Anti-Corruption Laws	70
	6.14	Deposit Accounts	70
	 	 	 
	ARTICLE VII.	NEGATIVE COVENANTS	70
	 	 	 
	7.01	Liens	71
	7.02	Investments	71
	7.03	Indebtedness	72
	7.04	Fundamental Changes	73
	7.05	Dispositions	74







 




    ii 


     


    

 





	7.06	Restricted Payments	74
	7.07	Change in Nature of Business	75
	7.08	Transactions with Affiliates	75
	7.09	Burdensome Agreements	75
	7.10	Use of Proceeds	75
	7.11	Financial Covenants.	76
	7.12	Sanctions	76
	7.13	Anti-Corruption Laws	76
	7.14	Restriction of Amendments to Certain Documents	76
	 	 	 
	ARTICLE VIII.	EVENTS OF DEFAULT AND REMEDIES	76
	 	 	 
	8.01	Events of Default	76
	8.02	Remedies Upon Event of Default	78
	8.03	Application of Funds	79
	 	 	 
	ARTICLE IX.	ADMINISTRATIVE AGENT	80
	 	 	 
	9.01	Appointment and Authority	80
	9.02	Rights as a Lender	80
	9.03	Exculpatory Provisions	80
	9.04	Reliance by Administrative Agent	81
	9.05	Delegation of Duties	82
	9.06	Resignation of Administrative Agent.	82
	9.07	Non-Reliance on Administrative Agent and Other Lenders	83
	9.08	No Other Duties, Etc.	84
	9.09	Administrative Agent May File Proofs of Claim.	84
	9.10	Guaranty Matters	84
	 	 	 
	ARTICLE X.	MISCELLANEOUS	85
	 	 	 
	10.01	Amendments, Etc.	85
	10.02	Notices; Effectiveness; Electronic Communication.	86
	10.03	No Waiver; Cumulative Remedies; Enforcement.	88
	10.04	Expenses; Indemnity; Damage Waiver.	89
	10.05	Payments Set Aside	91
	10.06	Successors and Assigns.	91
	10.07	Treatment of Certain Information; Confidentiality	96
	10.08	Right of Setoff	97
	10.09	Interest Rate Limitation	97
	10.10	Counterparts; Integration; Effectiveness	98
	10.11	Survival of Representations and Warranties	98
	10.12	Severability	98
	10.13	Replacement of Lenders	98
	10.14	Governing Law; Jurisdiction; Etc.	99
	10.15	Waiver of Jury Trial	100
	10.16	No Advisory or Fiduciary Responsibility	101







 




    iii 


     


    

 





	10.17	Electronic Execution of Assignments and Certain Other Documents	101
	10.18	USA PATRIOT Act	101
	10.19	Time of the Essence	101
	 	 	 
	SIGNATURES	S-1







 




    iv 


     


    

 


SCHEDULES


 


	2.01	Commitments and Applicable Percentages
	2.02	Regulated Subsidiaries
	5.03	Governmental Authorization; Other Consents
	5.05	Material Indebtedness and Other Liabilities
	5.06	Litigation
	5.12(d)	Pension Plans
	5.13	Subsidiaries; Other Equity Investments; Equity Interests in the Borrower
	7.01	Existing Liens
	7.03	Existing Indebtedness
	10.02	Administrative Agent’s Office; Certain Addresses for Notices; Taxpayer Identification Number


 


EXHIBITS


Form of


 


	A	Committed Loan Notice
	B	Reserved
	C	Revolving Note
	D	Compliance Certificate
	E-1	Assignment and Assumption
	E-2	Administrative Questionnaire
	F	Continuing Guaranty
	H	Forms of U.S. Tax Compliance Certificates


 




    v 


     


    

 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT (“Agreement”)
is entered into as of October 19, 2016, among GAS NATURAL INC., an Ohio corporation (the “Borrower”),
each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”),
and BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer.


 


The Borrower has requested that the Lenders
provide a revolving credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.


 


In consideration of the mutual covenants
and agreements herein contained, the parties hereto covenant and agree as follows:


 


ARTICLE
I. DEFINITIONS AND ACCOUNTING TERMS


 


1.01         Defined
Terms. As used in this Agreement, the following terms shall have the meanings set forth below:


 


“Acquisition” means
the acquisition of (i) a controlling equity interest or other controlling ownership interest in another Person (including the purchase
of an option, warrant or convertible or similar type security to acquire such a controlling interest at the time it becomes exercisable
by the holder thereof), whether by purchase of such equity or other ownership interest or upon the exercise of an option or warrant
for, or conversion of securities into, such equity or other ownership interest, or (ii) assets of another Person which constitute
all or substantially all of the assets of such Person or of a line or lines of business conducted by such Person.


 


“Administrative Agent”
means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative
agent.


 


“Administrative Agent’s
Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02,
or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.


 


“Administrative Questionnaire”
means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative
Agent.


 


“Affiliate” means, with
respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled
by or is under common Control with the Person specified.


 


“Aggregate Commitments”
means the Commitments of all the Lenders.


 


“Agreement” means this
Credit Agreement.


 




    	 	1	 



     


    

 


“Applicable Percentage”
means with respect to any Revolving Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving
Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment at such time, subject to adjustment
as provided in Section 2.17. If the commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation
of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Revolving Credit
Commitments have expired, then the Applicable Percentage of each Revolving Credit Lender in respect of the Revolving Credit Facility
shall be determined based on the Applicable Percentage of such Revolving Credit Lender in respect of the Revolving Credit Facility
most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in respect
of each Facility is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant
to which such Lender becomes a party hereto, as applicable.


 


“Applicable Rate” means
the following percentages per annum, based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate
received by the Administrative Agent pursuant to Section 6.02(b):


 


	Applicable Rate
	Pricing
 Level	 	Total Debt to
 Capital Ratio	 	Unused
 Commitment
 Fee	 	 	Eurodollar
 Rate +
 Letters of
 Credit	 	 	Base Rate	 
	1	 	Less than or equal to 0.30 to 1.00	 	 	0.250	%	 	 	1.750	%	 	 	0.750	%
	2	 	Greater than 0.30 to 1.00 but less than or equal to 0.40 to 1.00	 	 	0.350	%	 	 	2.000	%	 	 	1.000	%
	3	 	Greater than 0.40 to 1.00	 	 	0.450	%	 	 	2.250	%	 	 	1.250	%



 


Any increase or decrease in the Applicable
Rate resulting from a change in the Total Debt to Capital Ratio shall become effective as of the first Business Day immediately
following the date a Compliance Certificate is delivered pursuant to Section 6.02(b); provided, however, that
if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Lenders,
Pricing Level 3 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have
been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered. The Applicable Rate
in effect from the Closing Date until (but not including such day) the first Business Day immediately following the date a Compliance
Certificate is delivered pursuant to Section 6.02(b) for the reporting period ended as of September 30, 2016 shall be determined
based upon Pricing Level 2 and shall be adjusted from and after such date in accordance with the terms hereof.


 




    	 	2	 



     


    

 


“Applicable Revolving Credit Percentage”
means with respect to any Revolving Credit Lender at any time, such Revolving Credit Lender’s Applicable Percentage in respect
of the Revolving Credit Facility at such time.


 


“Approved Fund” means
any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity
that administers or manages a Lender.


 


“Arranger” means Merrill
Lynch, Pierce, Fenner & Smith Incorporated, in its capacity as sole lead arranger and sole bookrunner.


 


“Assignment and Assumption”
means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent
is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1
or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative
Agent.


 


“Attributable Indebtedness”
means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.


 


“Audited Financial Statements”
means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2015 and
the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of
the Borrower and its Subsidiaries, including the notes thereto.


 


“Availability Period”
means in respect of the Revolving Credit Facility, the period from and including the Closing Date to the earliest of (a) the Maturity
Date for the Revolving Credit Facility, (b) the date of termination of the Revolving Credit Commitments pursuant to Section
2.06, and (c) the date of termination of the commitment of each Revolving Credit Lender to make Revolving Credit Loans and
of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.


 


“Bank of America” means
Bank of America, N.A. and its successors.


 


“Base Rate”
means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%,
(b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime
rate,” and (c) the Eurodollar Rate plus 1.00%. The “prime rate” is a rate set by Bank of America based upon various
factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime
rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement
of such change.


 




    	 	3	 



     


    

 


“Base Rate Loan” means
a Loan that is a Base Rate Loan.


 


“Base Rate Loan” means
a Loan that bears interest based on the Base Rate.


 


“Bison Infrastructure Transaction”
means the merger and related transactions contemplated by that certain Agreement and Plan of Merger entered into on October 8,
2016 by and among Borrower, FR Bison Holdings, Inc., a Delaware corporation (“Holdings”), and FR Bison Merger Sub,
Inc., an Ohio corporation and subsidiary of Holdings (“Merger Sub”), pursuant to which Merger Sub will merge with and
into Borrower, with the Borrower surviving such merger.


 


“Borrower” has the meaning
specified in the introductory paragraph hereto.


 


“Borrower Materials”
has the meaning specified in Section 6.02.


 


“Borrowing” means a
Revolving Credit Borrowing.


 


“Business Day” means
any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar
Rate Loan, means any such day that is also a London Banking Day.


 


“Capital” means, as
of any date of determination thereof, without duplication, the sum of: (i) Consolidated Net Worth plus (ii) all Indebtedness.


 


“Cash Collateralize”
means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or the
Revolving Credit Lenders, as collateral for L/C Obligations or obligations of the Revolving Credit Lenders to fund participations
in respect of L/C Obligations, cash or deposit account balances or, if the Administrative Agent and the L/C Issuer shall agree
in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer. “Cash Collateral” shall have a meaning correlative to the foregoing and shall
include the proceeds of such cash collateral and other credit support.


 


“Cash Management Agreement”
means any agreement that is not prohibited by the terms hereof to provide treasury or cash management services, including deposit
accounts, overnight draft, credit cards, debit cards, p-cards (including purchasing cards and commercial cards), funds transfer,
automated clearinghouse, zero balance accounts, returned check concentration, controlled disbursement, lockbox, account reconciliation
and reporting and trade finance services and other cash management services, in any case, entered into by the Borrower or any of
its Subsidiaries with a Lender or an Affiliate of a Lender.


 


“Change in Law” means
the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation
or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive
(whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to
the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives
thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for
International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States
or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”,
regardless of the date enacted, adopted or issued.


 




    	 	4	 



     


    

 


“Change of Control”
means an event or series of events by which:


 


(a)          any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act
of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity
as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial
ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately
or only after the passage of time (such right, an “option right”)), directly or indirectly, of 35% or
more of the equity securities of the Borrower entitled to vote for members of the board of directors or equivalent governing body
of the Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to
acquire pursuant to any option right); or


 


(b)          during
any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of
the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first
day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board
or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination
for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened
solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation
for the election of one or more directors by or on behalf of the board of directors); or


 


(c)          a
“Change of Control” under and as defined in the Note Purchase Agreement shall occur;


 


provided however, that the Bison
Infrastructure Transaction shall not constitute a “Change of Control” for purposes of this Agreement


 


“Closing Date” means
the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.


 


“Code” means the Internal
Revenue Code of 1986.


 




    	 	5	 



     


    

 


“Commitment” means a
Revolving Credit Commitment.


 


“Committed Loan Notice”
means a notice of (a) a Borrowing, (b) a conversion of Loans from one Type to the other, or (c) a continuation of Eurodollar Rate
Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A or such
other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission
system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.


 


“Compliance Certificate”
means a certificate substantially in the form of Exhibit D.


 


“Computation Period”
means each period of four (4) consecutive fiscal quarters ending on the last day of a fiscal quarter.


 


“Connection Income Taxes”
means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or
branch profits Taxes.


 


“Consolidated Net Income”
means, with respect to the Borrower and its Subsidiaries for any period, the net income (or loss) of the Borrower and its Subsidiaries
for such period, excluding any gains from Dispositions, any extraordinary gains and any gains from discontinued operations
determined on a consolidated basis in accordance with GAAP.


 


“Consolidated Net Worth”
means, as of any time the same is to be determined, the total shareholders’ equity (including capital stock, additional paid-in-capital
and retained earnings after deducting treasury stock, but excluding (to the extent otherwise included in calculating shareholders’
equity), minority interests in Subsidiaries) which would appear on the consolidated balance sheet of the Borrower determined on
a consolidated basis in accordance with GAAP.


 


“Consolidated Tangible Net Worth”
means, as of any date, Consolidated Net Worth minus goodwill of the Borrower and its Subsidiaries on a consolidated basis in accordance
with GAAP.


 


“Contractual Obligation”
means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking
to which such Person is a party or by which it or any of its property is bound.


 


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


 


“Credit Extension” means
each of the following: (a) a Borrowing and (b) an L/C Credit Extension.


 


“Debtor Relief Laws”
means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United
States or other applicable jurisdictions from time to time in effect.


 




    	 	6	 



     


    

 


“Default” means any
event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would
be an Event of Default.


 


“Default Rate” means
(a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided, however,
that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees,
a rate equal to the Applicable Rate plus 2% per annum.


 


“Defaulting
Lender” means, subject to Section
2.17(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the
date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing
that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of
which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been
satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer or any other Lender any other amount required to be paid by
it hereunder (including in respect of its participation in Letters of Credit) within two Business Days of the date when due, (b)
has notified the Borrower, the Administrative Agent or the L/C Issuer in writing that it does not intend to comply with its funding
obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s
obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition
precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such
writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative
Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective
funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause
(c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or
indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for
it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other
state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender
solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company
thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity
from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets
or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made
with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses
(a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error,
and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.17(b)) as of the date established therefor
by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to
the Borrower, the L/C Issuer and each other Lender promptly following such determination.


 




    	 	7	 



     


    

 


“Designated Jurisdiction”
means any country or territory to the extent that such country or territory itself is the subject of any Sanction.


 


“Disposition” or “Dispose”
means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable
or any rights and claims associated therewith.


 


“Dollar” and “$”
mean lawful money of the United States.


 


“Domestic Subsidiary”
means any Subsidiary that is organized under the laws of any political subdivision of the United States.


 


“EBIT” means, for any
period, Consolidated Net Income for such period plus, to the extent deducted in determining such Consolidated Net Income (without
duplication): (i) Interest Expense for such period, (ii) income tax and expense for such period, and (iii) non-recurring expenses
for such period, provided, however, that the aggregate amount of such non-recurring expenses that may be added to EBIT in any fiscal
year may not exceed the Non-recurring Expense Cap. For purposes of this calculation, Net Lake County Litigation Expenses shall
(subject to the limitations set forth in clause (iii) of this definition) be treated as non-recurring expenses under clause (iii)
of this definition.


 


“Eligible Assignee”
means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii), and (v) (subject to such
consents, if any, as may be required under Section 10.06(b)(iii)).


 


“Environmental Laws”
means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection
of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes,
air emissions and discharges to waste or public systems.


 


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


 




    	 	8	 



     


    

 


“Equity Interests” means,
with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all
of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from
such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including
partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options,
rights or other interests are outstanding on any date of determination.


 


“ERISA” means the Employee
Retirement Income Security Act of 1974.


 


“ERISA Affiliate” means
any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b)
or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).


 


“ERISA Event” means
(a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate from
a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a “substantial employer”
as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of
a Pension Plan amendment as a termination under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings
to terminate a Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination that any Pension Plan
is considered an at-risk plan or a plan in endangered or critical status within the meaning of Sections 430, 431 and 432 of the
Code or Sections 303, 304 and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.


 


“Eurodollar Rate” means:


 


(a) (a) for any Interest
Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“LIBOR”)
or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg
screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent
from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period,
for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and


 


(b)          for
any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m.,
London time determined two Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day;
and


 




    	 	9	 



     


    

 


(c)          if
the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement;


 


provided that to the extent a comparable
or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner
consistent with market practice; provided, further that to the extent such market practice is not administratively feasible for
the Administrative Agent, such approved rate shall be applied in a manner as otherwise reasonably determined by the Administrative
Agent.


 


“Eurodollar Rate Loan”
means a Revolving Credit Loan that bears interest at a rate based on clause (a) of the definition of “Eurodollar Rate.”


 


“Event of Default” has
the meaning specified in Section 8.01.


 


“Excluded Taxes” means
any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to
a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in
each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the
case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or
(ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to
or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on
the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request
by the Borrower under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that,
pursuant to Section 3.01(a)(ii), (a)(iii) or (c), amounts with respect to such Taxes were payable either to
such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its
Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any U.S.
federal withholding Taxes imposed pursuant to FATCA.


 


“Existing Note Purchase Agreement”
means that certain Note Purchase Agreement dated as of June 29, 2007 by and among the Energy West, Incorporated and each of the
“Purchasers” listed on Schedule A attached thereto, as may be amended, restated, supplemented or otherwise modified
from time to time in accordance with the terms hereof and thereof.


 


“Existing Private Placement Notes
Indebtedness” means Indebtedness of the Energy West, Incorporated incurred pursuant to the Existing Private Placement
Notes Documents


 


“Existing Private Placement Notes
Documents” means (i) the Existing Note Purchase Agreement, (ii) the “Notes” (as such term is defined
in such Note Purchase Agreement), and (iii) the documents, instruments and agreements contemplated thereby and heretofore executed,
executed concurrently therewith or executed at any time and from time to time hereafter, as each of the foregoing may be amended,
restated, supplemented or otherwise modified from time to time in accordance with the terms hereof and the terms of the Existing
Note Purchase Agreement.


 




    	 	10	 



     


    

 


“Extraordinary Receipt”
means any cash received by or paid to or for the account of any Person not in the ordinary course of business, including tax refunds,
pension plan reversions, proceeds of insurance (other than proceeds of business interruption insurance to the extent such proceeds
constitute compensation for lost earnings), condemnation awards (and payments in lieu thereof), indemnity payments and any purchase
price adjustments.


 


“Facility” means the
Revolving Credit Facility.


 


“FASB ASC” means the
Accounting Standards Codification of the Financial Accounting Standards Board.


 


“FATCA” means Sections
1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable
and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof and any
agreements entered into pursuant to Section 1471(b)(1) of the Code.


 


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


 


“Final Resolution”
means the date the litigation was completely and conclusively settled by an enforceable contract or contracts among all the parties.


 


“Foreign Lender” means
(a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a Lender
that is resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute
a single jurisdiction.


 


“Form 10-K” means the
Borrower’s annual report on Form 10-K filed with and as required by the SEC.


 


“Form 10-Q” means the
Borrower’s quarterly report on Form 10-Q filed with and as required by the SEC.


 


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


 


“Fronting Exposure”
means, at any time there is a Defaulting Lender that is a Revolving Credit Lender, with respect to the L/C Issuer, such Defaulting
Lender’s Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting
Lender’s participation obligation has been reallocated to other Revolving Credit Lenders or Cash Collateralized in accordance
with the terms hereof.


 




    	 	11	 



     


    

 


“Fund” means any Person
(other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its activities.


 


“GAAP” means generally
accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that
are applicable to the circumstances as of the date of determination, consistently applied.


 


“Governmental Authority”
means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national
bodies such as the European Union or the European Central Bank).


 


“Guarantee” means, as
to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing
any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities
or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition
or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness
or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness
or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole
or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether
or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of
such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person
in good faith. The term “Guarantee” as a verb has a corresponding meaning.


 


“Guarantors” means,
collectively, each of the Borrower's Subsidiaries (other than the Regulated Subsidiaries) party to a Guaranty as of the Closing
Date and each other Person from time to time party to such Guaranty.


 




    	 	12	 



     


    

 


“Guaranties” means,
a Continuing Guaranty made by the applicable Guarantors in favor of the Administrative Agent and the Lenders, substantially in
the form specified such Guarantors set forth on Exhibit F. “Guaranty” means any such guaranty individually.


 


“Hazardous Materials”
means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including
petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.


 


“Hedge Agreement” means
a Swap Contracted entered into by the Borrower or a Subsidiary of the Borrower with a Lender or an Affiliate of a Lender.


 


“HMT” has the meaning
set forth in the definition of “Sanctions”.


 


“Indebtedness” means,
as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities
in accordance with GAAP:


 


(a)          all
obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements
or other similar instruments;


 


(b)          all
direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’
acceptances, bank guaranties, surety bonds and similar instruments;


 


(c)          net
obligations of such Person under any Swap Contract;


 


(d)          all
obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the
ordinary course of business and, in each case, not past due for more than 90 days after the date on which such trade account payable
was created);


 


(e)          indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse;


 


(f)          capital
leases and Synthetic Lease Obligations;


 


(g)          all
obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest
in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends; and


 


(h)          all
Guarantees of such Person in respect of any of the foregoing.


 




    	 	13	 



     


    

 


For all purposes hereof, the Indebtedness
of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation
or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the
Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall
be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.


 


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


 


“Indemnitees” has the
meaning specified in Section 10.04(b).


 


“Information” has the
meaning specified in Section 10.07.


 


“Interest Coverage Ratio”
means, for any period of four consecutive fiscal quarters, the ratio of: (i) EBIT for such period to (ii) the sum of (A) Interest
Expense for such period, and (B) all Net Lake County Litigation Expenses for such period; provided that, for purposes of this calculation,
the first $2,500,000 of Net Lake County Litigation Expenses charged against the Borrower’s consolidated income statement
in accordance with GAAP after the date of this Agreement shall be disregarded and not included in such calculation.


 


“Interest Expense” means,
for any period, all expense of the Borrower or any of its Subsidiaries for such period classified as interest expense for such
period, including capitalized interest and interest under “synthetic” leases, in accordance with GAAP.


 


“Interest Payment Date”
means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity
Date of the Facility under which such Loan was made; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall
also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December
and the Maturity Date of the Facility under which such Loan was made.


 


“Interest Period” means
as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued
as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter (in each case, subject to availability),
as selected by the Borrower in its Committed Loan Notice, or such other period that is twelve months or less requested by the Borrower
and consented to by all the Lenders; provided that:


 


(i)          any
Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business
Day unless, in the case of a Eurodollar Rate Loan, such Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day;


 




    	 	14	 



     


    

 


(ii)         any
Interest Period pertaining to a Eurodollar Rate Loan that begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period; and


 


(iii)        no
Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.


 


“Investment” means,
as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person,
including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees
Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of
assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall
be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.


 


“IP Rights” has the
meaning specified in Section 5.18.


 


“IRS” means the United
States Internal Revenue Service.


 


“ISP” means, with respect
to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking
Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).


 


“Issuer Documents” means
with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.


 


“Lake County Litigation”
means the litigation filed on or about June 26, 2014 by Mr. Richard M. Osborne against the Borrower and the Borrower’s board
of directors, Case No. 14CV001512 in the Court of Common Pleas in Lake County, Ohio, as more fully described in the Borrower’s
most recent Form 10-K.


 


“Laws” means, collectively,
all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed
duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether
or not having the force of law.


 


“L/C Advance” means,
with respect to each Revolving Credit Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance
with its Applicable Revolving Credit Percentage.


 




    	 	15	 



     


    

 


“L/C Borrowing” means
an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Revolving Credit Borrowing.


 


“L/C Credit Extension”
means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.


 


“L/C Issuer” means Bank
of America in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.


 


“L/C Obligations” means,
as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus
the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. For
all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding”
in the amount so remaining available to be drawn.


 


“Lender” has the meaning
specified in the introductory paragraph hereto.


 


“Lending Office” means,
as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or
such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent, which office may
include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate. Unless the context otherwise
requires each reference to a Lender shall include its applicable Lending Office.


 


“Letter of Credit” means
any standby letter of credit issued hereunder providing for the payment of cash upon the honoring of a presentation thereunder.


 


“Letter of Credit Application”
means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by
the L/C Issuer.


 


“Letter of Credit Expiration Date”
means the day that is seven days prior to the Maturity Date then in effect for the Revolving Credit Facility (or, if such day is
not a Business Day, the next preceding Business Day).


 


“Letter of Credit Fee”
has the meaning specified in Section 2.03(h).


 


“Letter of Credit Sublimit”
means an amount equal to $15,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.


 


“LIBOR” has the meaning
specified in the definition of Eurodollar Rate.


 


“Lien” means any mortgage,
pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority
or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including
any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property,
and any financing lease having substantially the same economic effect as any of the foregoing).


 




    	 	16	 



     


    

 


“Loan” means an extension
of credit by a Lender to the Borrower under Article II in the form of a Revolving Credit Loan.


 


“Loan Documents” means
this Agreement, each Note, each Issuer Document, any agreement creating or perfecting rights in Cash Collateral pursuant to the
provisions of Section 2.16 of this Agreement and the Guaranty.


 


“Loan Parties” means,
collectively, the Borrower and each Guarantor.


 


“London Banking Day”
means any day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.


 


“Material Adverse Effect”
means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual
or contingent), or condition (financial or otherwise) of the Borrower or the Borrower and its Subsidiaries taken as a whole; (b)
a material impairment of the ability of any Loan Party to perform its obligations under any Loan Document to which it is a party;
or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party.


 


“Maturity Date” means
October 19, 2021; provided, however, that if such date is not a Business Day, the Maturity Date shall be the next
preceding Business Day.


 


“Minimum Collateral Amount”
means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate
Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 105% of the Fronting Exposure of the L/C
Issuer with respect to Letters of Credit issued and outstanding at such time, (ii) with respect to Cash Collateral consisting of
cash or deposit account balances provided in accordance with the provisions of Section 2.16(a)(i), (a)(ii) or (a)(iii),
an amount equal to 105% of the Outstanding Amount of all LC Obligations, and (iii) otherwise, an amount determined by the Administrative
Agent and the L/C Issuer in their sole discretion but not to exceed 105% in any event.


 


“Multiemployer Plan”
means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.


 


“Multiple Employer Plan”
means a Plan which has two or more contributing sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are
not under common control, as such a plan is described in Section 4064 of ERISA.


 




    	 	17	 



     


    

 


“Net Cash Proceeds” means:


 


(a)          with
respect to the sale of any asset by the Borrower or any Subsidiary, the excess, if any, of (i) the sum of cash and cash equivalents
received in connection with such sale (including any cash received by way of deferred payment pursuant to, or by monetization of,
a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness
that is secured by such asset and that is required to be repaid in connection with the sale thereof (other than Indebtedness under
the Loan Documents), (B) the out-of-pocket expenses incurred by the Borrower or any Subsidiary in connection with such sale and
(C) income taxes reasonably estimated to be actually payable within two years of the date of the relevant asset sale as a result
of any gain recognized in connection therewith; and


 


(b)          with
respect to the sale of any capital stock or other equity interest by the Borrower, the excess of (i) the sum of the cash and cash
equivalents received in connection with such sale over (ii) the underwriting discounts and commissions, and other out-of-pocket
expenses, incurred by the Borrower in connection with such sale.


 


“Net Lake County Litigation Expenses”
means, for any period, the total amount of expenses of the Borrower and its Subsidiaries charged against the Borrower’s consolidated
income statement in accordance with GAAP with respect to the Lake County Litigation, including all monies, awards, settlement payments,
monetary obligations, contingent liabilities (if any) or other amounts payable by or on behalf of the Borrower and its Subsidiaries
in connection with the Final Resolution of the Lake County Litigation and all other expenses of every kind associated with the
Lake County Litigation, including all attorney’s fees and all other out-of-pocket expenses, after deducting therefrom, any
insurance proceeds received by the Borrower or any Subsidiary in connection with such expenses. For the avoidance of doubt, any
expenses associated with the Lake County Litigation charged against the Borrower’s consolidated income statement in accordance
with GAAP prior to the date of this Agreement shall not constitute Net Lake County Litigation Expenses.


 


“Non-Consenting Lender”
means any Lender that does not approve any consent, waiver or amendment that (i) requires the approval of all Lenders or all affected
Lenders, or all Lenders or all affected Lenders in a Facility, in accordance with the terms of Section 10.01 and (ii) has
been approved by the Required Lenders.


 


“Non-Defaulting Lender”
means, at any time, each Lender that is not a Defaulting Lender at such time.


 


“Non-recurring Expense Cap”
means (i) for the Borrower’s 2016 fiscal year, $4,500,000, and (ii) for each other fiscal year, $1,000,000.


 


“Note” means a Revolving Credit Note.


 


“Note Purchase Agreement”
means that certain Note Purchase Agreement dated as of October 19, 2016 by and among the Borrower and each of the “Purchasers”
listed on Schedule A attached thereto, as may be amended, restated, supplemented or otherwise modified from time to time in accordance
with the terms hereof and thereof.


 




    	 	18	 



     


    

 


“Obligations” means
all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or
otherwise with respect to any Loan or Letter of Credit, and in respect of Cash Management Agreements and Hedge Agreements, in any
case, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing
or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.


 


“OFAC” means the Office
of Foreign Assets Control of the United States Department of the Treasury.


 


“Organization Documents”
means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate
or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust
or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and
any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles
of formation or organization of such entity.


 


“Original Closing Date”
means June 29, 2007.


 


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


 


“Other Taxes” means
all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made
under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed
with respect to an assignment (other than an assignment made pursuant to Section 3.06).


 


“Outstanding Amount”
means (i) with respect to Revolving Credit Loans on any date, the aggregate outstanding principal amount thereof after giving effect
to any borrowings and prepayments or repayments of Revolving Credit Loans occurring on such date; and (ii) with respect to any
L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring
on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any
reimbursements by the Borrower of Unreimbursed Amounts.


 




    	 	19	 



     


    

 


“Participant” has the
meaning specified in Section 10.06(d).


 


“Participant Register”
has the meaning specified in Section 10.06(d).


 


“PBGC” means the Pension
Benefit Guaranty Corporation.


 


“Pension Act” means
the Pension Protection Act of 2006.


 


“Pension Funding Rules”
means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment thereof) to Pension
Plans and set forth in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412 of the Code
and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter, Section 412, 430, 431, 432 and 436 of the
Code and Sections 302, 303, 304 and 305 of ERISA.


 


“Pension Plan” means
any employee pension benefit plan (including a Multiple Employer Plan or a Multiemployer Plan) that is maintained or is contributed
to by the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Code.


 


“Permitted
Acquisition” means an Acquisition by the Borrower or a Subsidiary in which all of the following are satisfied: (i) the
Person to be (or whose assets are to be) acquired does not oppose such Acquisition, and the line or lines of business of the Person
(or reflected by the assets) to be acquired is substantially the same as one or more line or lines of business conducted by the
Borrower and its Subsidiaries, (ii) no Default shall have occurred and be continuing either immediately prior to or immediately
after giving effect to such Acquisition, (iii) such Acquisition shall not include or result in any contingent liabilities that
could reasonably be expected to be material to the business, financial condition, operations or prospects of the Borrower and its
Subsidiaries, taken as a whole (as determined in good faith by the board of directors (or the persons performing similar functions)
of the Borrower or such Subsidiary if the board of directors is otherwise approving such transaction and, in each other case, by
a Responsible Officer), (iv) the Person acquired shall be a wholly-owned Subsidiary, or be merged into the Borrower or a Loan Party,
immediately upon consummation of the Acquisition (or if assets are being acquired, the acquiror shall be the Borrower or a Loan
Party), (v) the Borrower shall have furnished to the Administrative Agent and Lenders at least ten (10) Business Days prior to
the consummation of such Acquisition (1) such other information and documents regarding the Acquisition that the
Administrative Agent may reasonably request, including, without limitation, executed counterparts of the respective agreements,
documents or instruments pursuant to which such Acquisition is to be consummated, (2) pro forma financial statements
of the Borrower and its Subsidiaries after giving effect to the consummation of such Acquisition, and (3) a certificate
of a Responsible Officer of the Borrower demonstrating on a pro forma basis compliance with the covenants set forth in Section
7.11 hereof after giving effect to the consummation of such Acquisition, (vi) the total consideration (including, but not limited
to, all seller notes, earn-outs and indebtedness and liabilities assumed in connection therewith) paid or payable for any such
Acquisition shall not exceed $25,000,000 in the aggregate, and (vii) upon the consummation of such Acquisition, the Borrower and
any applicable Subsidiary shall have complied with the provisions of Section 6.12.


 




    	 	20	 



     


    

 


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


 


“Plan” means any employee
benefit plan within the meaning of Section 3(3) of ERISA (including a Pension Plan), maintained for employees of the Borrower
or any ERISA Affiliate or any such Plan to which the Borrower or any ERISA Affiliate is required to contribute on behalf of any
of its employees.


 


“Platform” has the meaning
specified in Section 6.02.


 


“Prior Indebtedness”
means the Indebtedness owing by the Borrower and its Subsidiaries pursuant to (i) that certain Amended and Restated Credit Agreement
dated as of September 20, 2012 among Energy West, Incorporated, the Lenders (as defined therein) and the Administrative Agent,
as amended, restated, supplemented or otherwise modified from time to time, (ii) the Existing Private Placement Notes Documents,
(iii) those certain 5.38% Senior Secured Guaranteed Notes with an original principal amount of $15,334,000 owing by Northeast Ohio
Natural Gas Corp., an Ohio corporation, Orwell Natural Gas Company, an Ohio corporation, and Brainard Gas Corp., an Ohio corporation,
in favor of Sun Life Assurance Company of Canada, (iv) those certain
4.15% Senior Secured Guaranteed Notes with an original principal amount of $2,989,552 owing by Northeast Ohio Natural Gas Corp.,
an Ohio corporation, Orwell Natural Gas Company, an Ohio corporation, and Brainard Gas Corp., an Ohio corporation, in favor of
Sun Life Assurance Company of Canada, (v) those certain Senior
Unsecured Bridge Loan Notes with an original principal amount of $4,000,000 owing by Borrower in favor of NIL Funding Corporation
and (vi) any capital leases.


 


“Private Placement Notes Indebtedness”
means Indebtedness of the Borrower incurred pursuant to the Private Placement Notes Documents


 


“Private Placement Notes Documents”
means (i) the Note Purchase Agreement, (ii) the “Notes” (as such term is defined in such Note Purchase Agreement),
and (iii) the documents, instruments and agreements contemplated thereby and heretofore executed, executed concurrently therewith
or executed at any time and from time to time hereafter, as each of the foregoing may be amended, restated, supplemented or otherwise
modified from time to time in accordance with the terms hereof and the terms of the Note Purchase Agreement.


 


“Public Lender” has
the meaning specified in Section 6.02.


 


“Recipient” means the
Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation
of any Loan Party hereunder.


 


“Register” has the meaning
specified in Section 10.06(c).


 


“Regulated Subsidiaries”
means those Subsidiaries, whether now or hereafter acquired, that operate as regulated utilities, as further described on Schedule
2.02 attached hereto, which exhibit may be modified from time to time with the consent of the Administrative Agent.


 




    	 	21	 



     


    

 


“Related Parties” means,
with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees,
administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.


 


“Reportable Event” means
any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.


 


“Request for Credit Extension”
means (a) with respect to a Borrowing, conversion or continuation of Revolving Credit Loans, a Committed Loan Notice and (b) with
respect to an L/C Credit Extension, a Letter of Credit Application.


 


“Required Lenders” means,
at any time, Lenders having Total Credit Exposures representing more than 50% of the Total Credit Exposures of all Lenders. The
Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time; provided
that, the amount of any participation in any Unreimbursed Amounts that such Defaulting Lender has failed to fund that have not
been reallocated to and funded by another Lender shall be deemed to be held by the Lender that is the L/C Issuer, as the case may
be, in making such determination.


 


“Responsible Officer”
means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party,
solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the secretary or any assistant
secretary of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer of the applicable
Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent or any other officer or employee
of the applicable Loan Party designated in or pursuant to an agreement between the applicable Loan Party and the Administrative
Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed
to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible
Officer shall be conclusively presumed to have acted on behalf of such Loan Party.


 


“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other
Equity Interest of the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of
any such capital stock or other Equity Interest, or on account of any return of capital to the Borrower’s stockholders, partners
or members (or the equivalent Person thereof).


 


“Revolving Credit Borrowing”
means a borrowing consisting of simultaneous Revolving Credit Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Revolving Credit Lenders pursuant to Section 2.01(b).


 


“Revolving Credit Commitment”
means, as to each Revolving Lender, its obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section 2.01,
and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding not to exceed
the amount set forth opposite such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this
Agreement.


 




    	 	22	 



     


    

 


“Revolving Credit Commitment Reduction
Period” means April 1st through June 30th of each fiscal year.


 


“Revolving Credit Exposure”
means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Credit Loans and
such Lender’s participation in L/C Obligations at such time.


 


“Revolving Credit Facility”
means, at any time, the aggregate amount of the Revolving Credit Lenders’ Revolving Credit Commitments at such time.


 


“Revolving Credit Lender”
means, at any time, (a) so long as any Revolving Credit Commitment is in effect, any Lender that has a Revolving Credit Commitment
at such time or (b) if the Revolving Credit Commitments have terminated or expired, any Lender that has a Revolving Credit Loan
or a participation in L/C Obligations at such time.


 


“Revolving Credit Loan”
has the meaning specified in Section 2.01(b).


 


“Revolving Credit Note”
means a promissory note made by the Borrower in favor of a Revolving Lender evidencing Revolving Loans made by such Lender, substantially
in the form of Exhibit C.


 


“Sanction(s)” means
any sanction administered or enforced by the United States Government (including, without limitation, OFAC), the United Nations
Security Council, the European Union, Her Majesty’s Treasury (“HMT”) or other relevant sanctions authority.


 


“SEC” means the U.S.
Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.


 


“Subsidiary” of a Person
means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned,
or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall
refer to a Subsidiary or Subsidiaries of the Borrower.


 


“Swap Contract” means
(a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps
or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and
(b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed
by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master Agreement.


 




    	 	23	 



     


    

 


“Swap Termination Value”
means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement
relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause
(a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).


 


“Synthetic Lease Obligation”
means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but
which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard
to accounting treatment).


 


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


 


“Threshold Amount” means
$1,000,000.


 


“Total Revolving Credit Outstandings”
means the aggregate Outstanding Amount of all Revolving Credit Loans and L/C Obligations.


 


“Total Credit Exposure”
means, as to any Lender at any time, the unused Commitments and Revolving Credit Exposure of such Lender at such time.


 


“Total Debt” means,
without duplication, all Indebtedness of the Borrower and its Subsidiaries, determined on a consolidated basis.


 


“Total Debt to Capital Ratio”
means, as of the last day of any fiscal quarter, the ratio of: (i) Total Debt as of such day to (ii) Capital as of such day.


 


“Total Outstandings”
means the aggregate Outstanding Amount of all Loans and all L/C Obligations.


 


“Type” means, with respect
to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.


 




    	 	24	 



     


    

 


“UCP” means, with respect
to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”)
Publication No. 600 (or such later version thereof as may be in effect at the time of issuance).


 


“United States” and
“U.S.” mean the United States of America.


 


“Unreimbursed Amount”
has the meaning specified in Section 2.03(c)(i).


 


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


 


“U.S. Tax Compliance Certificate”
has the meaning specified in Section 3.01(e)(ii)(B)(III).


 


1.02       Other
Interpretive Provisions. With reference to this Agreement and each other Loan Document, unless otherwise specified herein
or in such other Loan Document:


 


(a)          The
definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
The word “will” shall be construed to have the same meaning and effect as the word “shall.”
Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including
any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth
herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, (iii) the words “hereto,” “herein,” “hereof” and
“hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such
Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating,
amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer
to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset”
and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.


 


(b)          In
the computation of periods of time from a specified date to a later specified date, the word “from” means “from
and including;” the words “to” and “until” each mean “to but excluding;”
and the word “through” means “to and including.”


 


(c)          Section
headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation
of this Agreement or any other Loan Document.


 




    	 	25	 



     


    

 


1.03       Accounting
Terms.


 


(a)          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 on financial liabilities shall be disregarded.


 


(b)          Changes
in GAAP. If at any time any change in GAAP 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 so request, the Administrative Agent, the Lenders and
the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light
of such change in GAAP (subject to 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 as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP. Without limiting the foregoing, 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 change in GAAP relating thereto, unless the parties hereto shall enter into a mutually acceptable amendment addressing such
changes, as provided for above.


 


(c)          Consolidation
of Variable Interest Entities. All references herein to consolidated financial statements of the Borrower and its Subsidiaries
or to the determination of any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference shall,
in each case, be deemed to include each variable interest entity that the Borrower is required to consolidate pursuant to GAAP
(which, as of the Closing Date, is set forth in FASB ASC 810) as if such variable interest entity were a Subsidiary as defined
herein.


 


1.04       Rounding.
Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed
herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).


 


1.05       Times
of Day; Rates. Unless otherwise specified, all references herein to times of day shall be references to Central time (daylight
or standard, as applicable). The Administrative Agent does not warrant, nor accept responsibility, nor shall the Administrative
Agent have any liability with respect to the administration, submission or any other matter related to the rates in the definition
of “Eurodollar Rate” or with respect to any comparable or successor rate thereto.


 




    	 	26	 



     


    

 


1.06       Letter
of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the
stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that,
by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving
effect to all such increases, whether or not such maximum stated amount is in effect at such time.


 


ARTICLE
II. the COMMITMENTS and Credit Extensions


 


2.01       Loans.
(a) [Reserved].


 


(b)          Revolving
Credit Borrowings. Subject to the terms and conditions set forth herein, each Revolving Credit Lender severally agrees to make
loans (each such loan, a “Revolving Credit Loan”) to the Borrower from time to time, on any Business Day during
the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving
Credit Commitment; provided, however, that after giving effect to any Revolving Credit Borrowing, (i) the Total Revolving
Credit Outstandings shall not exceed the Revolving Credit Facility, and (ii) the Revolving Credit Exposure of any Lender shall
not exceed such Revolving Credit Lender’s Commitment. Within the limits of each Revolving Credit Lender’s Revolving
Credit Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01(b),
prepay under Section 2.05, and reborrow under this Section 2.01(b). Revolving Credit Loans may be Base Rate Loans
or Eurodollar Rate Loans, as further provided herein.


 


2.02       Borrowings,
Conversions and Continuations of Loans.


 


(a)          Each
Borrowing, each conversion of Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon
the Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone or (B) a Committed Loan
Notice; provided, that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a Committed
Loan Notice. Each such Committed Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business
Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion
of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans. Each Borrowing
of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $100,000 or a whole multiple of $50,000
in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate
Loans shall be in a principal amount of $100,000 or a whole multiple of $50,000 in excess thereof. Each Committed Loan Notice shall
specify (i) the applicable Facility whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the
other, or a continuation of Eurodollar Rate Loans, as the case may be, under such Facility, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed,
converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable,
the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Committed Loan Notice
or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made
as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of
the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of,
conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period,
it will be deemed to have specified an Interest Period of one month.


 




    	 	27	 



     


    

 


(b)          Following
receipt of a Committed Loan Notice for a Facility, the Administrative Agent shall promptly notify each Appropriate Lender of the
amount of its Applicable Percentage under such Facility of the applicable Loans, and if no timely notice of a conversion or continuation
is provided by the Borrower, the Administrative Agent shall notify each Applicable Lender of the details of any automatic conversion
to Base Rate Loans described in the preceding subsection. In the case of a Borrowing, each Appropriate Lender shall make the amount
of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not
later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative
Agent either by (i) crediting the account of the Borrower on the books of Bank of America with the amount of such funds or (ii)
wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date the Committed Loan Notice with respect to a Revolving
Credit Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Revolving Credit Borrowing,
first, shall be applied to the payment in full of any such L/C Borrowings, and second, shall be made available to
the Borrower as provided above.


 


(c)          Except
as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for
such Eurodollar Rate Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurodollar
Rate Loans without the consent of the Required Lenders.


 


(d)          The
Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period
for Eurodollar Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative
Agent shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base
Rate promptly following the public announcement of such change.


 


(e)          After
giving effect to all Borrowings, all conversions of Loans from one Type to the other, and all continuations of Loans as the same
Type, there shall not be more than ten Interest Periods in effect with respect to Revolving Credit Loans.


 




    	 	28	 



     


    

 


(f)          Notwithstanding
anything to the contrary in this Agreement, any Lender may exchange, continue or rollover all of the portion of its Loans in connection
with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to
a cashless settlement mechanism approved by the Borrower, the Administrative Agent, and such Lender.


 


2.03       Letters
of Credit.


 


(a)          The
Letter of Credit Commitment.


 


(i)          Subject
to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements of the Revolving Credit
Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date
until the Letter of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its Subsidiaries, and
to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under
the Letters of Credit; and (B) the Revolving Credit Lenders severally agree to participate in Letters of Credit issued for the
account of the Borrower or its Subsidiaries and any drawings thereunder; provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (x) the Total Revolving Credit Outstandings shall not exceed the Revolving Credit
Facility, (y) the Revolving Credit Exposure of any Revolving Credit Lender shall not exceed such Lender’s Revolving Credit
Commitment, and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request
by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that
the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the
foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall
be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters
of Credit that have expired or that have been drawn upon and reimbursed.


 


(ii)         The
L/C Issuer shall not issue any Letter of Credit, if:


 


(A)         subject
to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would occur more than twelve months after the date of
issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or


 


(B)         the
expiry date of the requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Revolving
Credit Lenders have approved such expiry date.


 


(iii)        The
L/C Issuer shall not be under any obligation to issue any Letter of Credit if:


 




    	 	29	 



     


    

 


(A)         any
order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing the Letter of Credit, or any Law applicable to the L/C Issuer or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit, or request that the L/C
Issuer refrain from, the issuance of letters of credit generally or the Letter of Credit in particular or shall impose upon the
L/C Issuer with respect to the Letter of Credit any restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the L/C Issuer any unreimbursed loss,
cost or expense which was not applicable on the Closing Date and which the L/C Issuer in good faith deems material to it;


 


(B)         the
issuance of the Letter of Credit would violate one or more policies of the L/C Issuer applicable to letters of credit generally;


 


(C)         except
as otherwise agreed by the Administrative Agent and the L/C Issuer, the Letter of Credit is in an initial stated amount less than
$100,000;


 


(D)         the
Letter of Credit is to be denominated in a currency other than Dollars;


 


(E)         any
Revolving Credit Lender is at that time a Defaulting Lender, unless the L/C Issuer has entered into arrangements, including the
delivery of Cash Collateral, satisfactory to the L/C Issuer (in its sole discretion) with the Borrower or such Revolving Credit
Lender to eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.17(a)(iv))
with respect to the Defaulting Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit
and all other L/C Obligations as to which the L/C Issuer has actual or potential Fronting Exposure, as it may elect in its sole
discretion.


 


(iv)        The
L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be permitted at such time to issue the Letter of Credit
in its amended form under the terms hereof.


 


(v)         The
L/C Issuer shall be under no obligation to amend any Letter of Credit if (A) the L/C Issuer would have no obligation at such time
to issue the Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not
accept the proposed amendment to the Letter of Credit.


 


(vi)        The
L/C Issuer shall act on behalf of the Revolving Credit Lenders with respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative
Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article IX included the L/C Issuer with respect to such acts or omissions,
and (B) as additionally provided herein with respect to the L/C Issuer.


 




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(b)          Procedures
for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit.


 


(i)          Each
Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to the L/C Issuer (with
a copy to the Administrative Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible
Officer of the Borrower. Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier,
by electronic transmission using the system provided by the L/C Issuer, by personal delivery or by any other means acceptable to
the L/C Issuer. Such Letter of Credit Application must be received by the L/C Issuer and the Administrative Agent not later than
11:00 a.m. at least two Business Days (or such later date and time as the Administrative Agent and the L/C Issuer may agree in
a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In
the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business
Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents
to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by
such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such
other matters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be amended;
(B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the L/C Issuer may require. Additionally, the Borrower shall furnish to the L/C Issuer and the Administrative
Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including
any Issuer Documents, as the L/C Issuer or the Administrative Agent may require.


 


(ii)         Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not,
the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the L/C Issuer has received written notice from
any Revolving Credit Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date
of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV
shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date, issue
a Letter of Credit for the account of the Borrower (or the applicable Subsidiary) or enter into the applicable amendment, as the
case may be, in each case in accordance with the L/C Issuer’s usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such
Revolving Credit Lender’s Applicable Revolving Credit Percentage times the amount of such Letter of Credit.


 




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(iii)        If
the Borrower so requests in any applicable Letter of Credit Application, the L/C Issuer may, in its sole discretion, agree to issue
a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension Letter of Credit”); provided
that any such Auto-Extension Letter of Credit must permit the L/C Issuer to prevent any such extension at least once in each twelve-month
period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later
than a day (the “Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not be required to make a specific
request to the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Credit
Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of such Letter of Credit
at any time to an expiry date not later than the Letter of Credit Expiration Date; provided, however, that the L/C
Issuer shall not permit any such extension if (A) the L/C Issuer has determined that it would not be permitted, or would have no
obligation, at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of
the provisions of clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which
may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from
the Administrative Agent that the Required Revolving Lenders have elected not to permit such extension or (2) from the Administrative
Agent, any Revolving Credit Lender or the Borrower that one or more of the applicable conditions specified in Section 4.02
is not then satisfied, and in each such case directing the L/C Issuer not to permit such extension.


 


(iv)        Reserved.


 


(v)         Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to
the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy
of such Letter of Credit or amendment.


 


(c)          Drawings
and Reimbursements; Funding of Participations.


 


(i)          Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer
under a Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse the L/C Issuer through
the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer
by such time, the Administrative Agent shall promptly notify each Revolving Credit Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Revolving Credit Lender’s Applicable
Revolving Credit Percentage thereof. In such event, the Borrower shall be deemed to have requested a Revolving Credit Borrowing
of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum
and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized
portion of the Revolving Credit Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed
Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be
given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.


 




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(ii)         Each
Revolving Credit Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available (and the Administrative
Agent may apply Cash Collateral provided for this purpose) for the account of the L/C Issuer at the Administrative Agent’s
Office in an amount equal to its Applicable Revolving Credit Percentage of the Unreimbursed Amount not later than 1:00 p.m. on
the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each Revolving Credit Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the L/C Issuer.


 


(iii)        With
respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Credit Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred
from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall
be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving
Credit Lender’s payment to the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii)
shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender
in satisfaction of its participation obligation under this Section 2.03.


 


(iv)        Until
each Revolving Credit Lender funds its Revolving Credit Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse
the L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Revolving
Credit Percentage of such amount shall be solely for the account of the L/C Issuer.


 


(v)         Each
Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C Advances to reimburse the L/C Issuer for amounts
drawn under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not
be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may
have against the L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however,
that each Revolving Credit Lender’s obligation to make Revolving Credit Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Committed Loan Notice). No
such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for
the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.


 




    	 	33	 



     


    

 


(vi)        If
any Revolving Credit Lender fails to make available to the Administrative Agent for the account of the L/C Issuer any amount required
to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), then, without limiting the other provisions of this Agreement, the L/C Issuer shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date
such payment is required to the date on which such payment is immediately available to the L/C Issuer at a rate per annum equal
to the greater of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by the L/C Issuer in connection with the
foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s
Revolving Credit Loan included in the relevant Revolving Credit Borrowing or L/C Advance in respect of the relevant L/C Borrowing,
as the case may be. A certificate of the L/C Issuer submitted to any Revolving Credit Lender (through the Administrative Agent)
with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.


 


(d)          Repayment
of Participations.


 


(i)          At
any time after the L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Credit Lender such
Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the Administrative Agent receives
for the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly
from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Applicable Revolving Credit Percentage thereof in the same funds as those received by
the Administrative Agent.


 


(ii)         If
any payment received by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is required
to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into
by the L/C Issuer in its discretion), each Revolving Credit Lender shall pay to the Administrative Agent for the account of the
L/C Issuer its Applicable Revolving Credit Percentage thereof on demand of the Administrative Agent, plus interest thereon from
the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate
from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations
and the termination of this Agreement.


 


(e)          Obligations
Absolute. The obligation of the Borrower to reimburse the L/C Issuer for each drawing under each Letter of Credit and
to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including the following:


 




    	 	34	 



     


    

 


(i)          any
lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;


 


(ii)         the
existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against
any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby
or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;


 


(iii)        any
draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission
or otherwise of any document required in order to make a drawing under such Letter of Credit;


 


(iv)        waiver
by the L/C Issuer of any requirement that exists for the L/C Issuer’s protection and not the protection of the Borrower or
any waiver by the L/C Issuer which does not in fact materially prejudice the Borrower;


 


(v)         honor
of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;


 


(vi)        any
payment made by the L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date
of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by
the UCC, the ISP or the UCP, as applicable;


 


(vii)       any
payment by the L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply
with the terms of such Letter of Credit; or any payment made by the L/C Issuer under such Letter of Credit to any Person purporting
to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding
under any Debtor Relief Law; or


 


(viii)      any
other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the Borrower or any Subsidiary.


 


The Borrower shall promptly examine a copy
of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with
the Borrower’s instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The Borrower shall
be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given
as aforesaid.


 




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(f)          Role
of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuer
shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required
by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the
Person executing or delivering any such document. None of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken
or omitted in connection herewith at the request or with the approval of the Revolving Credit Lenders or the Required Revolving
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer
Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use
of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the
Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant
or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (viii)
of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, the
Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves
were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to pay under
any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the foregoing, the L/C Issuer may
accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds
thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The L/C Issuer may send a Letter of
Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication
(“SWIFT”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.


 


(g)          Applicability
of ISP and UCP; Limitation of Liability. Unless otherwise expressly agreed by the L/C Issuer and the Borrower when a
Letter of Credit is issued, the rules of the ISP shall apply to each standby Letter of Credit. Notwithstanding the foregoing, the
L/C Issuer shall not be responsible to the Borrower for, and the L/C Issuer’s rights and remedies against the Borrower shall
not be impaired by, any action or inaction of the L/C Issuer required or permitted under any law, order, or practice that is required
or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where the
L/C Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as applicable, or in the decisions, opinions,
practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International
Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter
of Credit chooses such law or practice.


 




    	 	36	 



     


    

 


(h)          Letter
of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance,
subject to Section 2.17, with its Applicable Revolving Credit Percentage a Letter of Credit fee (the “Letter of
Credit Fee”) for each Letter of Credit equal to the Applicable Rate times the daily amount available to
be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit,
the amount of such Letter of Credit shall be determined in accordance with Section 1.06. Letter of Credit Fees shall be
(i) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first
such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand
and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily
amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein,
upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default
Rate.


 


(i)          Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. In the event there is more than one (1) Lender under
this Agreement, the Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to each Letter
of Credit, at the rate per annum specified by the L/C Issuer from time to time, computed on the daily amount available to be drawn
under such Letter of Credit on a quarterly basis in arrears; provided, the Borrower shall continue to pay any such fronting fee
implemented in accordance with the foregoing in the event, subsequent to the issuance of such Letter of Credit, there is only one
(1) Lender under this Agreement to the extent reasonably necessary in light of the facts and circumstances then applicable. Such
fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December in respect
of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such
date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with Section 1.06. In addition, the Borrower shall pay directly to the L/C Issuer for its own
account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the
L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are
due and payable on demand and are nonrefundable.


 


(j)          Conflict
with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms
hereof shall control.


 


(k)          Letters
of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of
any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse the L/C Issuer hereunder
for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for
the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits
from the businesses of such Subsidiaries.


 


2.04       Reserved.


 




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2.05       Prepayments.


 


(a)          Optional.
The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Revolving Credit
Loans in whole or in part without premium or penalty; provided that (i) such notice must be in form acceptable to the Administrative
Agent in its reasonable discretion and be received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days
prior to any date of prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment
of Eurodollar Rate Loans shall be in a principal amount of $50,000 or a whole multiple of $50,000 in excess thereof; and (iii)
any prepayment of Base Rate Loans shall be in a principal amount of $50,000 or a whole multiple of $50,000 in excess thereof or,
in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount
of such prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s)
of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount
of such Lender’s ratable portion of such prepayment (based on such Lender's Applicable Percentage in respect of the relevant
Facility). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied
by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Subject
to Section 2.17, such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages
in respect of each of the relevant Facilities.


 


(b)          Mandatory.
(i) If Borrower or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Section
7.05(b), (c), (d), (e) or (g)) which results in the realization by such Person of Net Cash Proceeds,
the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon receipt
thereof by such Person (such prepayments to be applied as set forth in clauses (vi) and (ix) below); provided, however,
that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i), at the election
of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long
as no Default shall have occurred and be continuing, the Borrower or such Subsidiary may retain and reinvest all or any portion
of such Net Cash Proceeds in an aggregate amount not to exceed $3,000,000 during the term of this Agreement in operating assets
so long as, in each case, within 180 days after the receipt of such Net Cash Proceeds, such purchase shall have been consummated
(as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that
any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment
of the Loans as set forth in this Section 2.05(b)(ii).


 


(ii)         Upon
the incurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted
to be incurred or issued pursuant to Section 7.03), the Borrower shall prepay an aggregate principal amount of Loans equal
to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments
to be applied as set forth in clause (vi) below).


 




    	 	38	 



     


    

 


(iii)        Upon
any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries, and not otherwise
included in clause (i) or (ii) of this Section 2.05(b), in an aggregate principal amount in excess of $3,000,000 during
the term of this Agreement, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all such Net Cash
Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied
as set forth in clauses (vi) and (ix) below); provided, however, that with respect to any proceeds of insurance,
condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (as notified by the Borrower
to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments),
and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary may apply within 180 days after
the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash
proceeds were received; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the
prepayment of the Loans as set forth in this Section 2.05(b)(v).


 


(iv)        Reserved.


 


(v)         Each
prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied to the Revolving Credit
Facility in the manner set forth in clause (vi) of this Section 2.05(b).  Subject to Section 2.17, such prepayments
shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the relevant Facilities.


 


(vi)        Except
as otherwise provided in Section 2.17, prepayments of the Revolving Credit Facility made pursuant to this Section
2.05(b), first, shall be applied ratably to the L/C Borrowings, second, shall be applied ratably to the outstanding
Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations, in each case, without
a permanent reduction of the Aggregate Commitments. The amount remaining, if any, after the prepayment in full of all L/C Borrowings
and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full may
be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been
Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the
Borrower or any other Loan Party or any Defaulting Lender that has provided Cash Collateral) to reimburse the L/C Issuer or the
Revolving Credit Lenders, as applicable.


 


(c)          If
for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility then in effect, including,
but not limited to, any excess existing on the first Business Day of the Revolving Credit Commitment Reduction Period, in each
case, after giving effect to the reduction of the Revolving Credit Facility on such date, the Borrower shall immediately prepay
Revolving Credit Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided,
however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c)
unless after the prepayment in full of the Revolving Credit Loans the Total Revolving Credit Outstandings exceed the Revolving
Credit Facility then in effect.


 




    	 	39	 



     


    

 


2.06       Termination
or Reduction of Commitments. The Borrower may, upon notice to the Administrative Agent, terminate the Revolving Credit Facility
or the Letter of Credit Sublimit, or from time to time permanently reduce the Revolving Credit Facility or the Letter of Credit
Sublimit; provided that (i) any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five Business
Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000
or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not terminate or reduce the Revolving Credit Facility
if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings would exceed
the Aggregate Commitments, and (iv) if, after giving effect to any reduction of the Revolving Credit Facility, the Letter of Credit
Sublimit exceeds the amount of the Revolving Credit Facility, such Sublimit shall be automatically reduced by the amount of such
excess. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Revolving
Credit Facility and the Letter of Credit Sublimit, as applicable. Any reduction of the Revolving Credit Facility shall be applied
to the Revolving Credit Commitment of each Lender according to its Applicable Revolving Credit Percentage. All fees accrued until
the effective date of any termination of the Revolving Credit Facility shall be paid on the effective date of such termination.


 


2.07       Repayment
of Loans. (a) [Reserved].


 


(b)          The
Borrower shall repay to the Revolving Credit Lenders on the Maturity Date for the Revolving Credit Facility the aggregate principal
amount of Revolving Credit Loans outstanding on such date.


 


2.08       Interest.


 


(a)          Subject
to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan under a Facility shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus
the Applicable Rate for such Facility; and (ii) each Base Rate Loan under a Facility shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for
such Facility.


 


(b)          (i)          If
any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity,
by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.


 


(ii)         If
any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard
to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required
Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default
Rate to the fullest extent permitted by applicable Laws.


 




    	 	40	 



     


    

 


(iii)        Upon
the request of the Required Lenders, while any Event of Default exists (other than as set forth in clauses (b)(i) and (b)(ii)
above), the Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.


 


(iv)        Accrued
and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.


 


(c)          Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may
be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment,
and before and after the commencement of any proceeding under any Debtor Relief Law.


 


2.09       Fees.
In addition to certain fees described in subsections (h) and (i) of Section 2.03:


 


(a)          Commitment
Fee. The Borrower shall pay to the Administrative Agent for the account of each Revolving Credit Lender in accordance
with its Applicable Revolving Credit Percentage, a commitment fee equal to the Applicable Rate times the actual daily amount
by which the Revolving Credit Facility exceeds the sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding
Amount of L/C Obligations, subject to adjustment as provided in Section 2.17. The commitment fee shall accrue at all times
during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met,
and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing
with the first such date to occur after the Closing Date, and on the last day of the Availability Period for the Revolving Credit
Facility. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect.


 


(b)          Closing
Fee. (i) The Borrower shall pay to the Administrative Agent for its own account a closing fee in the amount of
$336,000 on the Closing Date. Such fee shall be fully earned when paid and shall not be refundable for any reason whatsoever.


 


(c)          Other
Fees. The Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts
and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.


 




    	 	41	 



     


    

 


2.10       Computation
of Interest and Fees; Retroactive Adjustments of Applicable Rate.


 


(a)          All
computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to the Eurodollar 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 results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one
day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all
purposes, absent manifest error.


 


(b)          If,
as a result of any restatement of or other adjustment to the financial statements of the Borrower or for any other reason, the
Borrower or the Lenders determine that (i) the Total Debt to Capital Ratio as calculated by the Borrower as of any applicable date
was inaccurate and (ii) a proper calculation of the Total Debt to Capital Ratio would have resulted in higher pricing for such
period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the
applicable Lenders or the L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence
of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States,
automatically and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount equal to the excess
of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid
for such period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or the L/C Issuer, as the case
may be, under Section 2.03(c)(iii), 2.03(h) or 2.08(b) or under Article VIII. The Borrower’s
obligations under this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations
hereunder.


 


2.11       Evidence
of Debt.


 


(a)          The
Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each
Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and
the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error. Upon the request
of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative
Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records; provided, for purposes of
clarity, any previously issued Note for which a replacement or substitute Note has been issued by the Borrower, shall be deemed
cancelled and, to the extent reasonably capable of being returned, promptly returned to the Borrower for destruction. Each Lender
may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments
with respect thereto.


 


(b)          In
addition to the accounts and records referred to in subsection (a) above, each Lender and the Administrative Agent shall
maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations
in Letters of Credit. In the event of any conflict between the accounts and records maintained by the Administrative Agent and
the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.


 




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2.12       Payments
Generally; Administrative Agent’s Clawback.


 


(a)          General.
All payments to be made by the Borrower shall be made free and clear of and without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made
to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s
Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative
Agent will promptly distribute to each Lender its Applicable Percentage in respect of the relevant Facilities (or other applicable
share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All
payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business Day and
any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.


 


(b)          (i)
Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s
share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance
with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available
to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date
such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case
of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily
charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower,
the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative
Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest
paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then
the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative
Agent.


 




    	 	43	 



     


    

 


(ii)         Payments
by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the L/C Issuer hereunder
that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such
date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or the L/C Issuer,
as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate
Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount
so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.


 


A notice of the Administrative Agent to
any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest
error.


 


(c)          Failure
to Satisfy Conditions Precedent. If any Lender makes available to the Administrative Agent funds for any Loan to be made by
such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower
by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied
or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.


 


(d)          Obligations
of Lenders Several. The obligations of the Lenders hereunder to make Revolving Credit Loans, to fund participations in Letters
of Credit and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make
any Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section 10.04(c).


 


(e)          Funding
Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner
or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place
or manner.


 




    	 	44	 



     


    

 





2.13       Sharing
of Payments by Lenders. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment
in respect of any principal of or interest on any of the Loans made by it, or the participations in L/C Obligations held by it
resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans or participations and
accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans under
the applicable Facility and subparticipations in L/C Obligations of the other Lenders, or make such other adjustments as shall
be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Loans and other amounts owing them, provided that:


 


(i)          if
any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without
interest; and


 


(ii)         the
provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to
and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a
Defaulting Lender), (y) the
application of Cash Collateral provided for in Section 2.16, or (z) any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations to any assignee or
participant, other than an assignment to the Borrower or any Affiliate thereof (as to which the provisions of this Section shall
apply).


 


The Borrower consents
to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.


 


2.14       Reserved.


 


2.15       Reserved.



 


2.16       Cash
Collateral.


 


(a)          Certain
Credit Support Events. If (i) the L/C Issuer has honored any full or partial drawing request under any Letter of Credit and
such drawing has resulted in an L/C Borrowing, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral pursuant to Section 8.02(c), or (iv)
there shall exist a Defaulting Lender, the Borrower shall immediately (in the case of clause (iii) above) or within one
Business Day (in all other cases) following any request by the Administrative Agent or the L/C Issuer, provide Cash Collateral
in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant
to clause (iv) above, after giving effect to Section 2.17(a)(iv) and any Cash Collateral provided by the Defaulting
Lender).


 




    	 	45	 



     


    

 


(b)          Grant
of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants
to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuer and the
Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein,
and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the
obligations to which such Cash Collateral may be applied pursuant to Section 2.16(c). If at any time the Administrative
Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or the
L/C Issuer as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the
Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral
in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds subject
to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at Bank of America. The Borrower shall pay on
demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection
with the maintenance and disbursement of Cash Collateral.


 


(c)          Application.
Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.16
or Sections 2.03, 2.04, 2.05, 2.17 or 8.02 in respect of Letters of Credit shall be held and
applied to the satisfaction of the specific
L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Revolving Credit Lender
that is a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so
provided, prior to any other application of such property as may otherwise be provided for herein. 


 


(d)          Release.
Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall
be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto
(including by the termination of Defaulting Lender status of the applicable Revolving Credit Lender (or, as appropriate, its assignee
following compliance with Section 10.06(b)(vi))) or (ii) the determination by the Administrative Agent and the L/C Issuer
that there exists excess Cash Collateral; provided, however, the Person providing Cash Collateral and the L/C Issuer may
agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.


 


2.17       Defaulting
Lenders.


 


(a)          Adjustments.
Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such
time as that Lender is no longer a Defaulting Lender, to the extent permitted by applicable Law:


 


(i)          Waivers
and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect
to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 10.01.


 




    	 	46	 



     


    

 


(ii)         Defaulting
Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account
of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise) or received
by the Administrative Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times as
may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting
Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting
Lender to the L/C Issuer hereunder; third, to Cash Collateralize the L/C Issuer’s Fronting Exposure with respect to
such Defaulting Lender in accordance with Section 2.16; fourth, as the Borrower may request (so long as no Default
or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion
thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative
Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x)
satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y)
Cash Collateralize the L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future
Letters of Credit issued under this Agreement, in accordance with Section 2.16; sixth, to the payment of any amounts
owing to the Lenders or the L/C Issuer as a result of any judgment of a court of competent jurisdiction obtained by any Lender
or the L/C Issuer against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under
this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower
as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result
of such Defaulting Lender's breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as
otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal
amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and
(y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 4.02
were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting
Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting
Lender until such time as all Loans and funded and unfunded participations in L/C Obligations are held by the Lenders pro rata
in accordance with the Commitments hereunder without giving effect to Section 2.17(a)(iv). Any payments, prepayments or
other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to
post Cash Collateral pursuant to this Section 2.17(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender,
and each Lender irrevocably consents hereto.


 


(iii)        Certain
Fees.


 


(A)         No
Defaulting Lender shall be entitled to receive any fee payable under Section 2.09(a) for any period during which that Lender is
a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have
been paid to that Defaulting Lender).


 


(B)         Each
Defaulting Lender shall be entitled to receive Letter of Credit Fees for any period during which that Lender is a Defaulting Lender
only to the extent allocable to its Applicable Revolving Credit Percentage of the stated amount of Letters of Credit for which
it has provided Cash Collateral pursuant to Section 2.16.


 




    	 	47	 



     


    

 


(C)         With
respect to any fee payable under Section 2.09(a) or any Letter of Credit Fee not required to be paid to any Defaulting Lender
pursuant to clause (A) or (B) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any
such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in L/C Obligations
that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the L/C Issuer the amount
of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s Fronting Exposure
to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.


 


(iv)        Reallocation
of Applicable Percentages to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in L/C
Obligations shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Applicable Revolving Credit
Percentages (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation
does not cause the aggregate Revolving Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s
Revolving Credit Commitment. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder
against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting
Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.


 


(v)         Cash
Collateral. If the reallocation described in clause (a)(iv) above cannot, or can only partially, be effected, the Borrower
shall, without prejudice to any right or remedy available to it hereunder or under applicable Law, Cash Collateralize the L/C Issuers’
Fronting Exposure in accordance with the procedures set forth in Section 2.16.


 


(b)          Defaulting
Lender Cure. If the Borrower, the Administrative
Agent and the L/C Issuer agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify
the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein
(which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par
that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to
be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held on a pro rata basis by the
Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.17(a)(iv)), whereupon such Lender
will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued
or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further,
that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender
will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender.


 




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ARTICLE
III. TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01       Taxes.
 


 


(a)          Payments
Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.


 


(i)          Any
and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by applicable Laws. If any applicable Laws (as determined in the good faith discretion
of the Administrative Agent) require the deduction or withholding of any Tax from any such payment by the Administrative Agent
or a Loan Party, then the Administrative Agent or such Loan Party shall be entitled to make such deduction or withholding, upon
the basis of the information and documentation to be delivered pursuant to subsection (e) below.


 


(ii)         If
any Loan Party or the Administrative Agent shall be required by the Code to withhold or deduct any Taxes, including both
United States Federal backup withholding and withholding taxes, from any payment, then (A) the Administrative Agent shall withhold
or make such deductions as are determined by the Administrative Agent to be required based upon the information and documentation
it has received pursuant to subsection (e) below, (B) the Administrative Agent shall timely pay the full amount withheld
or deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the extent that the withholding or deduction
is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after
any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under
this Section 3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding
or deduction been made.


 


(iii)        If
any Loan Party or the Administrative Agent shall be required by any applicable Laws other than the Code to withhold or deduct
any Taxes from any payment, then (A) such Loan Party or the Administrative Agent, as required by such Laws, shall withhold or make
such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to
subsection (e) below, (B) such Loan Party or the Administrative Agent, to the extent required by such Laws, shall timely
pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C) to the extent
that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be
increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable
to additional sums payable under this Section 3.01) the applicable Recipient receives an amount equal to the sum it would
have received had no such withholding or deduction been made.


 


(b)          Payment
of Other Taxes by the Borrower. Without limiting the provisions of subsection (a) above, the Borrower shall timely pay
to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse
it for the payment of, any Other Taxes.


 




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(c)          Tax
Indemnifications. (i) The Borrower shall, and does hereby, jointly and severally indemnify each Recipient, and shall make payment
in respect thereof within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes
imposed or asserted on or attributable to amounts payable under this Section 3.01) payable or paid by such Recipient or
required to be withheld or deducted from a payment to such Recipient, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or the
L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender
or the L/C Issuer, shall be conclusive absent manifest error. The Borrower shall, and does hereby, jointly and severally indemnify
the Administrative Agent, and shall make payment in respect thereof within 10 days after demand therefor, for any amount which
a Lender or the L/C Issuer for any reason fails to pay indefeasibly to the Administrative Agent as required pursuant to Section
3.01(c)(ii) below.


 


(ii)         Each
Lender and the L/C Issuer shall, and does hereby, severally indemnify, and shall make payment in respect thereof within 10 days
after demand therefor, (x) the Administrative Agent against any Indemnified Taxes attributable to such Lender or the L/C
Issuer (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes
and without limiting the obligation of the Borrower to do so), (y) the Administrative Agent and the Borrower, as applicable,
against any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.06(d) relating
to the maintenance of a Participant Register and (z) the Administrative Agent and the Borrower, as applicable, against any
Excluded Taxes attributable to such Lender or the L/C Issuer, in each case, that are payable or paid by the Administrative Agent
or the Borrower in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether
or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.
Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time
owing to such Lender or the L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount
due to the Administrative Agent under this clause (ii).


 


(d)          Evidence
of Payments.  As soon as practicable after any payment of Taxes by the Borrower to a Governmental Authority as provided
in this Section 3.01, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or
other evidence of such payment reasonably satisfactory to the Administrative Agent.


 




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(e)          Status
of Lenders; Tax Documentation.


 


(i)          Any
Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document
shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative
Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will
permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably
requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether
or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary
in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set
forth in Section 3.01(e)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s
reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense
or would materially prejudice the legal or commercial position of such Lender.


 


(ii)         Without
limiting the generality of the foregoing, in the event that the Borrower is a U.S. Person,


 


(A)         any
Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender
becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative
Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;


 


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


 


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


 


(II)        executed
copies of IRS Form W-8ECI;


 




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(III)       in
the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x)
a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank”
within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning
of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the
Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN-E (or W-8BEN, as applicable);
or


 


(IV)        to
the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS
Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or
Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided
that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the
portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit
H-4 on behalf of each such direct and indirect partner;


 


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


 


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


 


(iii)        Each
Lender agrees that if any form or certification it previously delivered pursuant to this Section 3.01 expires or becomes
obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative
Agent in writing of its legal inability to do so.


 




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(f)          Treatment
of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation to file
for or otherwise pursue on behalf of a Lender or the L/C Issuer, or have any obligation to pay to any Lender or the L/C Issuer,
any refund of Taxes withheld or deducted from funds paid for the account of such Lender or the L/C Issuer, as the case may be.
If any Recipient determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which
it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section
3.01, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section 3.01 with respect to the Taxes giving rise to such refund),
net of all out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the
Recipient, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount
to the Borrower pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position
than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.
This subsection shall not be construed to require any Recipient to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to the Borrower or any other Person.


 


(g)          Survival.
Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative
Agent or any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the termination of the Commitments and
the repayment, satisfaction or discharge of all other Obligations.


 




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3.02       Illegality.
If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its Lending Office to perform any of its obligations hereunder or make, maintain or fund or charge interest
with respect to any Credit Extensions or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars
in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any
obligation of such Lender to issue, make, maintain, fund or charge interest with respect to any such Credit Extension or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts
the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the
Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid
such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate,
in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative
Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which
Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without
reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging
interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the
Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent
is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based
upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so
prepaid or converted.


 


3.03       Inability
to Determine Rates. If in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof,
(a) the Administrative Agent determines that (i) 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 (ii) 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) above, “Impacted Loans”),
or (b) the Administrative Agent determine that for any reason the Eurodollar 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 Eurodollar
Rate Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the
Lenders to make or maintain Eurodollar Rate Loans shall be suspended, (to the 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 notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate
Loans (to the extent of the affected Eurodollar Rate Loans or Interest Periods) or, failing that, will be deemed to have converted
such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.


 


Notwithstanding the foregoing,
if the Administrative Agent has made the determination described in clause (a) (i) of this section, the Administrative Agent, in
consultation with the Borrower and the affected Lenders, may establish an alternative interest rate for the Impacted Loans,
in which case, such alternative rate of interest shall apply with respect to the Impacted Loans until (1) the Administrative Agent
revokes the notice delivered with respect to the Impacted Loans under clause (a) of the first sentence of this section, (2) the
Administrative Agent notifies the Borrower that such alternative interest rate does not adequately and fairly reflect the cost
to such Lenders of funding the Impacted Loans, or (3) any Lender determines that any Law has made it unlawful, or that any Governmental
Authority has asserted that it is unlawful, for such Lender or its applicable Lending Office to make, maintain or fund Loans whose
interest is determined by reference to such alternative rate of interest or to determine or charge interest rates based upon such
rate or any Governmental Authority has imposed material restrictions on the authority of such Lender to do any of the foregoing
and provides the Administrative Agent and the Borrower written notice thereof.


 




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3.04       Increased
Costs; Reserves on Eurodollar Rate Loans.


 


(a)          Increased
Costs Generally. If any Change in Law shall:


 


(i)          impose,
modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated
by Section 3.04(e)) or the L/C Issuer;


 


(ii)         subject
any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition
of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations,
or its deposits, reserves, other liabilities or capital attributable thereto; or


 


(iii)        impose
on any Lender or the L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or
Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein;


 


and the result of any of
the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan (or of
maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in,
issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest
or any other amount) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to such Lender or the L/C Issuer,
as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for
such additional costs incurred or reduction suffered.


 


(b)          Capital
Requirements. If any Lender or the L/C Issuer determines that any Change in Law affecting such Lender or the L/C Issuer or
any Lending Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if any, regarding capital or
liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or the L/C Issuer’s
capital or on the capital of such Lender’s or the L/C Issuer’s holding company, if any, as a consequence of this Agreement,
the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the L/C Issuer, to a level below that which such Lender or the L/C Issuer or such Lender’s or the L/C
Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or
the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s holding company with respect
to capital adequacy), then from time to time the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional
amount or amounts as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C Issuer’s holding company
for any such reduction suffered.


 




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(c)          Certificates
for Reimbursement. A certificate of a Lender or the L/C Issuer setting forth the amount or amounts necessary to compensate
such Lender or the L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of
this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or the
L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.


 


(d)          Delay
in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demand compensation pursuant to the foregoing
provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or the L/C Issuer’s right to
demand such compensation, provided that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant
to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior
to the date that such Lender or the L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the L/C Issuer’s intention to claim compensation therefor (except
that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred
to above shall be extended to include the period of retroactive effect thereof).


 


(e)          Reserves
on Eurodollar Rate Loans. The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs
of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower
shall have received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such additional interest
from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest
shall be due and payable 10 days from receipt of such notice.


 


3.05       Compensation
for Losses. Upon demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly
compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:


 


(a)          any
continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the
Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);


 


(b)          any
failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert
any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower; or


 




    	 	56	 



     


    

 


(c)          any
assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request
by the Borrower pursuant to Section 10.13;


 


including any loss of anticipated
profits and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from
fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing.


 


For purposes of calculating
amounts payable by the Borrower to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.


 


3.06       Mitigation
Obligations; Replacement of Lenders.


 


(a)          Designation
of a Different Lending Office. Each Lender may make any Credit Extension to the Borrower through any Lending Office, provided
that the exercise of this option shall not affect the obligation of the Borrower to repay the Credit Extension in accordance with
the terms of this Agreement. If any Lender requests compensation under Section 3.04, or requires the Borrower to pay any
Indemnified Taxes or additional amounts to any Lender, the L/C Issuer, or any Governmental Authority for the account of any Lender
or the L/C Issuer pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then at the
request of the Borrower such Lender or the L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending
Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender or the L/C Issuer, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need
for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender or the L/C
Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or the
L/C Issuer, as the case may be. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or the
L/C Issuer in connection with any such designation or assignment.


 


(b)          Replacement
of Lenders. If any Lender requests compensation under Section 3.04, or if the Borrower is required to pay any Indemnified
Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01
and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section
3.06(a), the Borrower may replace such Lender in accordance with Section 10.13.


 


3.07       Survival.
All of the Borrower’s obligations under this Article III shall survive termination of the Aggregate Commitments,
repayment of all other Obligations hereunder, and resignation of the Administrative Agent.


 




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ARTICLE
IV. CONDITIONS PRECEDENT TO Credit Extensions


 


4.01       Conditions
of Initial Credit Extension. The obligation of the L/C Issuer and each Lender to make its initial Credit Extension hereunder
is subject to satisfaction of the following conditions precedent:


 


(a)          The
Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals)
unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date
(or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance
satisfactory to the Administrative Agent and each of the Lenders:


 


(i)          executed
counterparts of this Agreement and the Guaranty, sufficient in number for distribution to the Administrative Agent, each Lender
and the Borrower;


 


(ii)         a
Note executed by the Borrower in favor of each Lender requesting a Note;


 


(iii)        such
certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each
Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such
Loan Party is a party;


 


(iv)        such
documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized
or formed, and that each of the Borrower and each Guarantor is validly existing, in good standing and qualified to engage in business
in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification,
except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;


 


(v)         a
favorable opinion of each of the Loan Parties' corporate, regulatory and applicable local counsel, addressed to the Administrative
Agent and each Lender, in form and substance reasonably satisfactory to the Administrative Agent;


 


(vi)        a
certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required
in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Loan
Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that
no such consents, licenses or approvals are so required;


 


(vii)       a
certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a)
and (b) have been satisfied, and (B) that there has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;


 




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(viii)      the
audited financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2015 and the unaudited
financial statements of the Borrower and its Subsidiaries for the fiscal quarter of the Borrower ended March 31, 2016 along with
a duly completed Compliance Certificate, signed by a Responsible Officer of the Borrower;


 


(ix)         evidence
that all Prior Indebtedness has been paid in full in cash and all Liens securing such Prior Indebtedness have been terminated;


 


(x)          evidence
that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect; and


 


(x)          such
other assurances, certificates, documents, consents or opinions as the Administrative Agent, the L/C Issuer or the Required Lenders
reasonably may require.


 


(b)          Any
fees required to be paid on or before the Closing Date shall have been paid.


 


(c)          Unless
waived by the Administrative Agent, the Borrower shall have paid all reasonable fees, charges and disbursements of counsel to the
Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to or on
the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate
of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).


 


Without limiting the generality
of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified
in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted
or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory
to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying
its objection thereto.


 


4.02       Conditions
to all Credit Extensions. The obligation of each Lender to honor any Request for Credit Extension (other than a Committed
Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to
the following conditions precedent:


 


(a)          The
representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document,
or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct
on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this
Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05
shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively,
of Section 6.01.


 




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(b)          No
Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.


 


(c)          The
Administrative Agent and, if applicable, the L/C Issuer shall have received a Request for Credit Extension in accordance with the
requirements hereof.


 


Each Request for Credit
Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar
Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections
4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.


 


ARTICLE
V. REPRESENTATIONS AND WARRANTIES


 


The Borrower represents
and warrants to the Administrative Agent and the Lenders that:


 


5.01       Existence,
Qualification and Power. Each Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly existing and,
as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite
power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets
and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party,
and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership,
lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred
to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.


 


5.02       Authorization;
No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene
the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of,
or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person
is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction,
writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate
any Law.


 


5.03       Governmental
Authorization; Other Consents. Every approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person that is necessary or required in connection with the execution, delivery
or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document has been obtained on or
before the Closing Date, which such approvals, consents, exemptions, authorizations and other applicable actions, notices and
filings are set forth on Schedule 5.03.


 




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5.04       Binding
Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and
delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered
will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto
in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting
the enforcement of creditors’ rights generally or by equitable principles relating to enforceability.


 


5.05       Financial
Statements; No Material Adverse Effect.


 


(a)          The
Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Borrower and its Subsidiaries as
of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and
other liabilities, direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.


 


(b)          The
unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated August 31, 2016, and the related consolidated statements
of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared
in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein,
and (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes
and to normal year-end audit adjustments. Schedule 5.05 sets forth all material indebtedness and other liabilities, direct
or contingent, of the Borrower and its consolidated Subsidiaries as of the date of such financial statements, including liabilities
for taxes, material commitments and Indebtedness.


 


(c)          Since
the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate,
that has had or could reasonably be expected to have a Material Adverse Effect.


 


(d)          Reserved.


 


(e)          The
consolidated forecasted balance sheet and statements of income and cash flows of the Borrower and its Subsidiaries delivered pursuant
to Section 6.01(c) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair
in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s
best estimate of its future financial condition and performance.


 


5.06       Litigation.
Except as disclosed on Schedule 5.06, there are no actions, suits, proceedings, claims or disputes pending or, to the knowledge
of the Borrower after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before
any Governmental Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties or revenues
that (a) purport to have a material effect on this Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) either individually or in the aggregate could reasonably be expected to have a Material Adverse Effect.


 




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5.07       No
Default. Neither any Loan Party nor any Subsidiary thereof is in default under or with respect to any Contractual Obligation
that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has
occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other
Loan Document.


 


5.08       Ownership
of Property; Liens. Each of the Borrower and each Subsidiary has good record and marketable title in fee simple to, or valid
leasehold, easement, license or right-of-way interests in, all real property necessary or used in the ordinary conduct of its
business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. The property of the Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by Section
7.01.


 


5.09       Environmental
Compliance. The Borrower and its Subsidiaries conduct in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective
businesses, operations and properties, and as a result thereof the Borrower has reasonably concluded that such Environmental Laws
and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


5.10       Insurance.
The properties of the Borrower and its Subsidiaries are insured with financially sound and reputable insurance companies not Affiliates
of the Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged
in similar businesses and owning similar properties in localities where the Borrower or the applicable Subsidiary operates.


 


5.11       Taxes.
The Borrower and its Subsidiaries have filed all Federal, state and other material tax returns and reports required to be filed,
and have paid all Federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed
upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There
is no proposed tax assessment against the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect. Neither
any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.


 


5.12       ERISA
Compliance.


 


(a)          Each
Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state laws.
Each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination
letter from the Internal Revenue Service to the effect that the form of such Plan is qualified under Section 401(a) of the Code
and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section
501(a) of the Code, or an application for such a letter is currently being processed by the Internal Revenue Service. To the best
knowledge of the Borrower, nothing has occurred that would prevent or cause the loss of such tax-qualified status.


 




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(b)          There
are no pending or, to the best knowledge of the Borrower, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited
transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be
expected to result in a Material Adverse Effect.


 


(c)          (i)
No ERISA Event has occurred, and neither the Borrower nor any ERISA Affiliate is aware of any fact, event or circumstance that
could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan; (ii) the Borrower and
each ERISA Affiliate has met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no
waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most
recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code)
is 60% or higher and neither the Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be
expected to cause the funding target attainment percentage for any such plan to drop below 60% as of the most recent valuation
date; (iv) neither the Borrower nor any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums,
and there are no premium payments which have become due that are unpaid; (v) neither the Borrower nor any ERISA Affiliate has engaged
in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan has been terminated
by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be
expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.


 


(d)          Neither
the Borrower or any ERISA Affiliate maintains or contributes to, or has any unsatisfied obligation to contribute to, or liability
under, any active or terminated Pension Plan other than (A) on the Closing Date, those listed on Schedule 5.12(d) hereto
and (B) thereafter, Pension Plans not otherwise prohibited by this Agreement.


 


5.13       Subsidiaries;
Equity Interests. As of the Closing Date, the Borrower 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 nonassessable and are owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.13 free and clear
of all Liens. The Borrower has no equity investments in any other corporation or entity other than those specifically disclosed
in Part (b) of Schedule 5.13. All of the outstanding Equity Interests in the Borrower have been validly issued,
are fully paid and nonassessable and are owned free and clear of all Liens.


 


5.14       Margin
Regulations; Investment Company Act; PUHCA.


 


(a)          The
Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of purchasing or
carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing
or carrying margin stock.


 




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(b)          None
of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or is required to be registered as an “investment
company” under the Investment Company Act of 1940.


 


(c)          The
Borrower is subject to regulation under the Public Utility Holding Company Act of 2005, as amended (“PUHCA”),
but has received an exemption from reporting and record retention requirements and is otherwise compliant with PUHCA. The Borrower
is not subject to regulation under the Natural Gas Act, the Natural Gas Policy Act or the rules, regulations and orders of the
Federal Energy Regulatory Commission or any other federal public utility or gas utility laws or regulations.


 


5.15       Disclosure.
There are no agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and
all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect. No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf
of any Loan Party to the Administrative Agent or any Lender in connection with the transactions contemplated hereby and the negotiation
of this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect
to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.


 


5.16       Compliance
with Laws. Each Loan Party and each Subsidiary thereof is in compliance in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which
(a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently
conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.


 


5.17       Taxpayer
Identification Number. The Borrower’s true and correct U.S. taxpayer identification number is set forth on Schedule
10.02.


 


5.18       Intellectual
Property; Licenses, Etc. The Borrower and its Subsidiaries own, or possess the right to use, all of the trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights
(collectively, “IP Rights”) that are reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other Person. To the best knowledge of the Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material nor any IP Rights now employed, used or
owned, or now contemplated to be employed, used or owned, by the Borrower or any Subsidiary infringes upon any rights held by
any other Person. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Borrower,
threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.


 




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5.19       OFAC. Neither
the Borrower, nor any of its Subsidiaries, nor, to the knowledge of the Borrower and its Subsidiaries, any director,
officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or controlled
by any individual or entity that is (i) currently the subject or target of any Sanctions , (ii) included on OFAC’s List
of Specially Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List,
or any similar list enforced by any other relevant sanctions authority or (iii) located, organized or resident in a
Designated Jurisdiction.


 


5.20       Anti-Corruption
Laws. The Borrower and its Subsidiaries have conducted their businesses in compliance with the United States Foreign
Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions.
and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.


 


ARTICLE
VI. AFFIRMATIVE COVENANTS


 


So long as any Lender shall
have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01,
6.02, and 6.03) cause each Subsidiary to:


 


6.01       Financial
Statements. Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative Agent
and the Required Lenders:


 


(a)          as
soon as available, but in any event within 90 days after the end of each fiscal year of the Borrower, a consolidated balance sheet
of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations,
changes in shareholders’ equity, and cash flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by
a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall
not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the
scope of such audit;


 


(b)          as
soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year
of the Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such fiscal quarter, the related
consolidated statements of income or operations for such fiscal quarter and for the portion of the Borrower’s respective
fiscal years then ended, and the related consolidated statements of changes in shareholders’ equity, and cash flows for the
portion of the Borrower’s respective fiscal years then ended, in each case setting forth in comparative form, as applicable,
the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal
year, all in reasonable detail, certified by the chief executive officer, chief financial officer, treasurer or controller of the
Borrower as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes;
and


 




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(c)          as
soon as available, but in any event within 90 days after the end of each fiscal year of the Borrower, a budget prepared by management
of the Borrower, in form reasonably satisfactory to the Administrative Agent and the Required Lenders, of consolidated balance
sheets and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a monthly basis for the immediately
following fiscal year (including the fiscal year in which the Maturity Date occurs).


 


As to any information contained
in materials furnished pursuant to Section 6.02(d), the Borrower shall not be separately required to furnish such information
under subsection (a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Borrower
to furnish the information and materials described in subsections (a) and (b) above at the times specified therein.


 


6.02       Certificates;
Other Information. Deliver to the Administrative Agent and each Lender, in form and detail satisfactory to the Administrative
Agent and the Required Lenders:


 


(a)          concurrently
with the delivery of the financial statements referred to in Section 6.01(a), a certificate of its independent certified
public accountants certifying such financial statements and stating that in making the examination necessary therefor no knowledge
was obtained of any Default or, if any such Default shall exist, stating the nature and status of such event;


 


(b)          concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance
Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Borrower (which delivery
may, unless the Administrative Agent, or a Lender requests executed originals, be by electronic communication including fax or
email and shall be deemed to be an original authentic counterpart thereof for all purposes), together with a management discussion
and analysis report, in reasonable detail, signed by the chief financial officer of the Borrower, describing the operations and
financial condition of the Loan Parties and their Subsidiaries for the fiscal quarter and the portion of the fiscal year then ended
(or for the fiscal year then ended in the case of annual financial statements);


 


(c)          promptly
after any request by the Administrative Agent or any Lender, copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of directors) of the Borrower by independent accountants
in connection with the accounts or books of the Borrower or any Subsidiary, or any audit of any of them;


 


(d)          promptly
after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent
to the stockholders of the Borrower, as applicable, and copies of all annual, regular, periodic and special reports and registration
statements which the Borrower, as applicable, may file or be required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;


 




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(e)          promptly
after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Loan Party or
any Subsidiary thereof pursuant to the terms of any indenture, loan or credit or similar agreement and not otherwise required to
be furnished to the Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;


 


(f)          promptly,
and in any event within five Business Days after receipt thereof by the Borrower, any other Loan Party or any Subsidiary thereof,
copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction)
concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational
results of the Borrower, any other Loan Party or any Subsidiary thereof;


 


(g)          promptly,
such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance
with the terms of the Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably request; and


 


(h)          promptly,
copies of any notices (including notices of default or acceleration) received from any holder or trustee of, under or with respect
to any Private Placement Notes Debt or Subordinated Debt.


 


Documents required to be
delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) (to the extent any such documents are included
in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered
on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower’s website on the Internet
at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower’s behalf
on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver paper
copies of such documents to the Administrative Agent or any Lender upon its request to the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower
shall notify the Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and
provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. The Administrative
Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in
any event shall have no responsibility to monitor compliance by the Borrower with any such request by a Lender for delivery, and
each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.


 




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The Borrower hereby acknowledges
that (a) the Administrative Agent and/or the Arranger may, but shall not be obligated to, make available to the Lenders and the
L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”)
by posting the Borrower Materials on IntraLinks, Syndtrak, ClearPar, or a substantially similar electronic transmission system
(the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel
who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities
of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’
securities. The Borrower hereby agrees that (w) all Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed
to have authorized the Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not
containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal
and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information,
they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted
to be made available through a portion of the Platform designated “Public Side Information;” and (z) the Administrative
Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable
only for posting on a portion of the Platform not designated “Public Side Information.”


 


6.03       Notices.
Promptly notify the Administrative Agent and each Lender:


 


(a)          of
the occurrence of any Default;


 


(b)          of
any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including (i) breach or non-performance
of, or any default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation,
proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or
any material development in, any litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant to any applicable
Environmental Laws;


 


(c)          of
the occurrence of any ERISA Event;


 


(d)          of
any material change in accounting policies or financial reporting practices by the Borrower or any Subsidiary, including any determination
by the Borrower referred to in Section 2.10(b); and


 


(e)          of
any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Subsidiary and any regulatory authority
(other than periodic audits or reviews in the ordinary course).


 


Each notice pursuant to
this Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Borrower setting forth details of
the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto. Each
notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other
Loan Document that have been breached.


 




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6.04       Payment
of Obligations. Pay and discharge as the same shall become due and payable, all its obligations and liabilities, including
(a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are
being maintained by the Borrower or such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien upon its
property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.


 


6.05       Preservation
of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good standing under
the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or 7.05; (b)
take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks,
the non-preservation of which could reasonably be expected to have a Material Adverse Effect.


 


6.06       Maintenance
of Properties. (a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation
of its business in good working order and condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and
renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse
Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities.


 


6.07       Maintenance
of Insurance. Maintain with financially sound and reputable insurance companies not Affiliates of the Borrower, insurance
with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged
in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such
other Persons and providing for not less than 30 days’ prior notice to the Administrative Agent of termination, lapse
or cancellation of such insurance.


 


6.08       Compliance
with Laws. Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.


 


6.09       Books
and Records. (a) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters involving the assets and business of the Borrower
or such Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or such Subsidiary, as the case may
be.


 




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6.10       Inspection
Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to visit and inspect
any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom,
and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the
expense of the Borrower and at such reasonable times during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided, however, that when an Event of Default exists the Administrative
Agent or any Lender (or any of their respective representatives or independent contractors) may do any of the foregoing at the
expense of the Borrower at any time during normal business hours and without advance notice.


 


6.11       Use
of Proceeds. Use the proceeds of the Credit Extensions to repay in full in cash all Prior Indebtedness and for general corporate
purposes (including the financing of Permitted Acquisitions, working capital and capital expenditures) not in contravention of
any Law or of any Loan Document and in compliance with state laws governing permitted uses of proceeds in each jurisdiction where
the proceeds are employed.


 


6.12       Additional
Guarantors. Notify the Administrative Agent at the time that any Person becomes a Domestic Subsidiary (other than a Regulated
Subsidiary), and promptly thereafter (and in any event within 30 days), cause such Person to (a) become a Guarantor by executing
and delivering to the Administrative Agent a counterpart of the Guaranty or such other document as the Administrative Agent shall
deem appropriate for such purpose, and (b) deliver to the Administrative Agent documents of the types referred to in clauses
(iii) and (iv) of Section 4.01(a) and favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (a)),
all in form, content and scope reasonably satisfactory to the Administrative Agent. Notwithstanding anything to the contrary in
the foregoing, no Subsidiary of the Borrower shall become a guarantor of the Private Placement Notes Indebtedness or party to
any Private Placement Notes Documents in such capacity unless such Subsidiary shall have become a Guarantor hereunder as otherwise
provided in this Section 6.12.


 


6.13       Anti-Corruption
Laws. Conduct its businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act
2010, and other similar anti-corruption legislation in other jurisdictions. and maintain policies and procedures designed to promote
and achieve compliance with such laws.


 


6.14       Deposit
Accounts. Within 120 days following the Closing Date (or such other time as the Administrative Agent shall agree), Borrower
shall maintain, and shall cause each of its Subsidiaries to maintain its primary deposit accounts and treasury management
with Administrative Agent.


 


ARTICLE
VII. NEGATIVE COVENANTS


 


So long as any Lender shall
have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit
shall remain outstanding, the Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:


 




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7.01       Liens.
Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter
acquired, other than the following:


 


(a)          reserved;


 


(b)          Liens
existing on the date hereof and listed on Schedule 7.01 and any renewals or extensions thereof, provided that (i)
the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated
by Section 7.03(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal
or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b);


 


(c)          Liens
for taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;


 


(d)          carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course
of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person;


 


(e)          pledges
or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;


 


(f)          deposits
to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business in an aggregate principal
amount not to exceed $1,000,000;


 


(g)          easements,
rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial
in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the applicable Person;


 


(h)          Liens
securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h); and


 


(i)          Liens
securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost
or fair market value, whichever is lower, of the property being acquired on the date of acquisition.


 


7.02       Investments.
Make any Investments, except:


 


(a)          Investments
held by the Borrower or such Subsidiary in the form of cash equivalents or short-term marketable debt securities;


 




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(b)          advances
to officers, directors and employees of the Borrower and Subsidiaries in an aggregate amount not to exceed $250,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;


 


(c)          Investments
of the Borrower in any Guarantor and Investments of any Guarantor in the Borrower or in another Guarantor;


 


(d)          Investments
consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;


 


(e)          Guarantees
permitted by Section 7.03;


 


(f)          Permitted
Acquisitions;


 


(g)          Investments
of the Borrower or any Guarantor in any wholly-owned Subsidiary that is not a Guarantor; provided all of the following conditions
are satisfied:


 


(i)          no
Default or Event of Default shall have occurred and be continuing or would result therefrom; and


 


(ii)         after
giving effect to such Investment, on a pro forma basis as of the last day of the most recently ended Fiscal Quarter for which financial
statements have been delivered (or are required to have been delivered) pursuant to Section 6.01(b), the Borrower and its Subsidiaries
are in compliance with the covenants set forth in Section 7.11; and


 


(h)          other
Investments not exceeding $1,000,000 in the aggregate in any fiscal year of the Borrower.


 


7.03       Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except:


 


(a)          Indebtedness
under the Loan Documents;


 


(b)          Indebtedness
outstanding on the date hereof and listed on Schedule 7.03 and any refinancings, refundings, renewals or extensions thereof;
provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred,
in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the
terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material
terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into
and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the
Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended
and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then
applicable market interest rate;


 




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(c)          Guarantees
of the Borrower or any Guarantor in respect of Indebtedness otherwise permitted hereunder of the Borrower or any other Guarantor;


 


(d)          obligations
(contingent or otherwise) of the Borrower or any Subsidiary existing or arising under any Swap Contract, provided that (i)
such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating
risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;”
and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments
on outstanding transactions to the defaulting party;


 


(e)          Indebtedness
in respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the
limitations set forth in Section 7.01(i); provided, however, that the aggregate amount of all such Indebtedness
at any one time outstanding shall not exceed $10,000,000;


 


(f)          (i)
unsecured Indebtedness of the Borrower to its wholly-owned Subsidiaries and (ii) Indebtedness of Subsidiaries of the Borrower to
the Borrower;


 


(g)          Private
Placement Notes Indebtedness in an aggregate amount not to exceed $50,000,000;


 


(h)          Reserved;
and


 


(i)          other
unsecured Indebtedness in an aggregate principal amount not to exceed $2,000,000 at any time outstanding.


 


7.04       Fundamental
Changes. Except for the Bison Infrastructure Transaction, merge, dissolve, liquidate, consolidate with or into another Person,
or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person; provided, however, so long as no Default exists or would result therefrom:


 


(a)          any
Subsidiary may merge with (i) the Borrower, provided that the Borrower shall be the continuing or surviving Person, or (ii)
any one or more other Subsidiaries, provided that when any Guarantor is merging with another Subsidiary, the Guarantor shall
be the continuing or surviving Person; and


 


(b)          any
Subsidiary may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to
another Subsidiary; provided that if the transferor in such a transaction is a Guarantor, then the transferee must either
be the Borrower or a Guarantor.


 




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7.05       Dispositions.
Make any Disposition or enter into any agreement to make any Disposition, except:


 


(a)          Dispositions
of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;


 


(b)          Dispositions
of inventory in the ordinary course of business;


 


(c)          Dispositions
of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement
property;


 


(d)          Dispositions
of property by any Subsidiary to the Borrower or to a wholly-owned Subsidiary; provided that if the transferor of such property
is a Guarantor, the transferee thereof must either be the Borrower or a Guarantor;


 


(e)          Dispositions
permitted by Section 7.04;


 


(f)          Reserved;


 


(g)          non-exclusive
licenses of IP Rights in the ordinary course of business and substantially consistent with past practice for terms not exceeding
five years; and


 


(h)          Dispositions
by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.05; provided that (i) at the time
of such Disposition, no Default shall exist or would result from such Disposition, (ii) the aggregate net book value of all property
Disposed of in reliance on this clause (h) during any twelve (12) month period shall not exceed ten percent (10%) of the
net book value of the consolidated assets of the Borrower and its Subsidiaries as of the last day of the preceding fiscal year,
and (iii) the proceeds of such Disposition are applied as a mandatory prepayment against the Loans in accordance with Section
2.05(b);


 


provided, however,
that any Disposition pursuant to subsections (a) through (h) shall be for fair market value.


 


7.06       Restricted
Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise)
to do so, or issue or sell any Equity Interests, except that, so long as no Default shall have occurred and be continuing at the
time of any action described below or would result therefrom:


 


(a)          each
Subsidiary may make Restricted Payments to the Borrower, the Guarantors and any other Person that owns an Equity Interest in such
Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment
is being made;


 


(b)          the
Borrower and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or
other common Equity Interests of such Person;


 




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(c)          the
Borrower and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received
from the substantially concurrent issue of new shares of its common stock or other common Equity Interests; and


 


(d)          the
Borrower may (i) declare or pay cash dividends to its stockholders once each fiscal month to the extent (y) no Default or Event
of Default has occurred or would occur after giving effect to such dividend; and (z) after giving effect to the declaration and
payment of such dividend, the Borrower is in compliance with the financial covenants set forth in Section 7.11, as computed for
the most recent fiscal quarter for which financial statements have been (and are required to be) delivered hereunder; and (ii)
the Borrower may purchase or redeem a portion of its capital stock or other equity interests or any warrants, options or other
rights in respect thereof, if and solely to the extent: (y) no Default or Event of Default has occurred or would occur after giving
effect to such purchase or redemption; and (z) after giving effect to the declaration and payment of such purchase or redemption,
the Borrower is in compliance with the financial covenants set forth in Section 7.11, as computed for the most recent fiscal
quarter for which financial statements have been (and are required to be) delivered hereunder.


 


7.07       Change
in Nature of Business. Engage in any material line of business substantially different from those lines of business conducted
by the Borrower and its Subsidiaries on the date hereof or any business substantially related or incidental thereto.


 


7.08       Transactions
with Affiliates. Enter into any transaction of any kind with any Affiliate of the Borrower, whether or not in the ordinary
course of business, other than on fair and reasonable terms substantially as favorable to the Borrower or such Subsidiary as would
be obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s length transaction with a Person other
than an Affiliate.


 


7.09       Burdensome
Agreements. Enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that (a) limits the
ability (i) of any Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to
the Borrower or any Guarantor, (ii) of any Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of the Borrower or
any Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person; provided, however,
that this clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness
permitted under Section 7.03(e) solely to the extent any such negative pledge relates to the property financed by or the
subject of such Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted
to secure another obligation of such Person.


 


7.10       Use
of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally
or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others
for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.


 




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7.11       Financial
Covenants. 


 


(a)          Total
Debt to Capital Ratio. Permit the Total Debt to Capital Ratio as of the last day of each fiscal quarter of any fiscal year
of the Borrower to exceed 0.50 to 1.00.


 


(b)          Interest
Coverage Ratio. Permit the Interest Coverage Ratio for any Computation Period to be less than 2.00 to 1.00 as of the last day
of any fiscal quarter of the Borrower.


 


(c)          Consolidated
Net Worth. Permit Consolidated Net Worth to be less than the sum of (a) 75% of the total shareholders’ equity as reported
in the Borrower’s Form 10-Q for fiscal quarter ending September 30, 2016, plus (b) twenty percent (20%) of the sum of Consolidated
Net Income (if positive) earned in each fiscal quarter, commencing with the fiscal quarter beginning January 1, 2017.


 


7.12       Sanctions.
Directly or indirectly, use the proceeds of any Credit Extension, or lend, contribute or otherwise make available such proceeds
to any Subsidiary, joint venture partner or other individual or entity, to fund any activities of or business with any individual
or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other
manner that will result in a violation by any individual or entity (including any individual or entity participating in the transaction,
whether as Lender, Arranger, Administrative Agent, L/C Issuer, or otherwise) of Sanctions.


 


7.13       Anti-Corruption
Laws. Directly or indirectly use the proceeds of any Credit Extension for any purpose which would breach the United States
Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions.


 


7.14       Restriction
of Amendments to Certain Documents. Amend or otherwise modify, or waive any rights under, any of the Private Placement Notes
Documents without the prior written consent of the Administrative Agent and the Lenders, which consent shall be given in their
sole discretion.


 


ARTICLE
VIII. EVENTS OF DEFAULT AND REMEDIES


 


8.01       Events
of Default. Any of the following shall constitute an Event of Default:


 


(a)          Non-Payment.
The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan
or any L/C Obligation, or (ii) within five days after the same becomes due, any interest on any Loan or on any L/C Obligation,
or any fee due or any other amount payable hereunder or under any other Loan Document; or


 


(b)          Specific
Covenants. The Borrower fails to perform or observe any term, covenant or agreement contained in any of Section 6.01,
6.02, 6.03, 6.05, 6.10, 6.11, 6.12 or 6.14 or Article VII, or any Guarantor
fails to perform or observe any term, covenant or agreement contained in the Guaranty; or


 




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(c)          Other
Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a)
or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days;
or


 


(d)          Representations
and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith
shall be incorrect or misleading when made or deemed made; or


 


(e)          Cross-Default.
(i) The Borrower or any Subsidiary (A) fails to make any payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness
under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to
observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is
to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee
or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise),
or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee
to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination
Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Borrower
or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under
such Swap Contract as to which the Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount; or


 


(f)          Insolvency
Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes or consents to the institution of any proceeding under
any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part
of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding
under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the
consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or


 


(g)          Inability
to Pay Debts; Attachment. (i) The Borrower or any Subsidiary becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 30 days
after its issue or levy; or


 




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(h)          Judgments.
There is entered against the Borrower or any Subsidiary (i) one or more final judgments or orders for the payment of money in an
aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments
that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either
case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 30 consecutive
days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or


 


(i)          ERISA.
(i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected
to result in liability of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration
of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under
a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or


 


(j)          Invalidity
of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason
other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or any other Person contests in any manner the validity or enforceability of any material provision
of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports
to revoke, terminate or rescind any material provision of any Loan Document; or


 


(k)          Change
of Control. There occurs any Change of Control.


 


8.02       Remedies
Upon Event of Default. If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of,
or may, with the consent of, the Required Lenders, take any or all of the following actions:


 


(a)          declare
the commitment of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;


 


(b)          declare
the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Borrower;


 


(c)          require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the Minimum Collateral Amount with respect thereto);
and


 




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(d)          exercise
on behalf of itself, the Lenders and the L/C Issuer all rights and remedies available to it, the Lenders and the L/C Issuer under
the Loan Documents;


 


provided, however,
that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy
Code of the United States, the obligation of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts
as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations
as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.


 


8.03       Application
of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become
immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in
the proviso to Section 8.02), any amounts received on account of the Obligations shall, subject to the provisions of Sections
2.16 and 2.17, be applied by the Administrative Agent in the following order:


 


First, to payment
of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements
of counsel to the Administrative Agent and amounts payable under Article III) payable to the Administrative Agent in its
capacity as such;


 


Second, to payment
of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter
of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective
Lenders and the L/C Issuer (including fees and time charges for attorneys who may be employees of any Lender or the L/C Issuer)
and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause
Second payable to them;


 


Third, to payment
of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings
and other Obligations, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts described in this clause
Third payable to them;


 


Fourth, to payment
of that portion of the Obligations (including, without limitation, Obligations then owing under Hedge Agreements and Cash Management
Agreements) constituting unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders and the L/C Issuer in proportion
to the respective amounts described in this clause Fourth held by them;


 


Fifth, to the Administrative
Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn
amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and 2.16;
and


 




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Last, the balance,
if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.


 


Subject to Sections 2.03(c)
and 2.16, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth
above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other
Obligations, if any, in the order set forth above.


 


ARTICLE
IX. ADMINISTRATIVE AGENT


 


9.01       Appointment
and Authority. Each of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as
the Administrative Agent hereunder and under the other Loan Documents 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 or thereof, together
with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of
the Administrative Agent, the Lenders and the L/C Issuer, and neither the Borrower nor any other Loan Party shall have rights
as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent”
herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such
term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting
parties.


 


9.02       Rights
as a Lender. The Person 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 the term “Lender”
or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any
kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative
Agent hereunder and without any duty to account therefor to the Lenders.


 


9.03       Exculpatory
Provisions. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and
in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the
foregoing, the Administrative Agent:


 


(a)          shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;


 




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(b)          shall
not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed
in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein
or in the other Loan Documents), provided that the Administrative Agent shall not be required to take any action that, in
its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document
or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor
Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any
Debtor Relief Law; and


 


(c)          shall
not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for
the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained
by the Person serving as the 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 (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith
shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its
own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment.
The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is
given in writing to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.


 


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 or any other Loan Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document
or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.


 


9.04       Reliance
by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone
and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume
that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have received notice
to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit.
The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.


 




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9.05       Delegation
of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or
under any other Loan Document 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 of its duties and exercise its rights and powers by or through their respective
Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such 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. The Administrative Agent shall not
be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction
determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct
in the selection of such sub-agents.


 


9.06       Resignation
of Administrative Agent.


 


(a)          The
Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt
of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States.
If no such 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 (or such earlier day as shall be agreed by the Required
Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated
to) on behalf of the Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set forth
above, provided that in no event shall any such successor Administrative Agent be a Defaulting Lender. Whether or not a successor
has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.


 


(b)          If
the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the
Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such
Person as Administrative Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed
by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective
in accordance with such notice on the Removal Effective Date.


 




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(c)          With
effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (1) the retiring or removed Administrative
Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (2) except for
any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications
and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and
the L/C Issuer directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided
for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Administrative Agent (other
than as provided in Section 3.01(g) and other than any rights to indemnity payments or other amounts owed to the retiring
or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring
or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents
(if not already discharged therefrom as provided above in this Section). The fees payable by the Borrower to a successor Administrative
Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After
the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents,
the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring or removed
Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken
by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent and (ii) after such resignation
or removal for as long as any of them continues to act in any capacity hereunder or under the other Loan Documents, including
(a) acting as collateral agent or otherwise holding any collateral security on behalf of any of the Lenders and (b) in respect
of any actions taken in connection with transferring the agency to any successor Administrative Agent.


 


(d)          Any
resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer.
If Bank of America resigns as an L/C Issuer, it shall retain all the rights, powers, privileges
and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation
as L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans
or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c).  Upon the appointment by the Borrower
of a successor L/C Issuer hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender), (a) such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer, (b) the retiring
L/C Issuer shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents, and (c) the
successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America
with respect to such Letters of Credit.


 


9.07       Non-Reliance
on Administrative Agent and Other Lenders. Each Lender and the L/C Issuer acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and the L/C
Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or
any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue
to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.


 




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9.08       No
Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the Bookrunners, Arrangers or listed on the
cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents,
except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.


 


9.09       Administrative
Agent May File Proofs of Claim. In case of the pendency of any proceeding under any Debtor Relief Law or any other
judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan
or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention
in such proceeding or otherwise


 


(a)          to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations
and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order
to have the claims of the Lenders, the L/C Issuer and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C Issuer and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections 2.03(i) and (j),
2.09 and 10.04) allowed in such judicial proceeding; and


 


(b)          to
collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each
Lender and the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount
due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel,
and any other amounts due the Administrative Agent under Sections 2.09 and 10.04.


 


Nothing contained herein
shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any
Lender or the L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or the L/C Issuer
in any such proceeding.


 


9.10       Guaranty
Matters. Without limiting the provisions of Section 9.09, the Lenders and the L/C Issuer irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any Guarantor from its obligations under the Guaranty if
such Person ceases to be a Subsidiary as a result of a transaction permitted under the Loan Documents. Upon request by the Administrative
Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor
from its obligations under the Guaranty pursuant to this Section 9.10.


 




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ARTICLE
X. MISCELLANEOUS


 


10.01     Amendments,
Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any
departure by the Borrower or any other Loan Party therefrom, shall be effective unless in writing signed by the Required
Lenders and the Borrower or the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however,
that no such amendment, waiver or consent shall:


 


(a)          waive
any condition set forth in Section 4.01(a) without the written consent of each Lender;


 


(b)          extend
or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written
consent of such Lender;


 


(c)          postpone
any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest,
fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent
of each Lender directly affected thereby;


 


(d)          reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or any fees or other amounts payable
hereunder or under any other Loan Document without the written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default
Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate or (ii) to
amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce
the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;


 


(e)          change
(i) Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent
of each Lender or (ii) the order of application of any reduction in the Commitments or any prepayment of Loans among the Facilities
from the application thereof set forth in the applicable provisions of Section 2.05(b) or 2.06(b), respectively, in any manner
that materially and adversely affects the Lenders under a Facility without the written consent of the Required Facility Lenders
under such Facility;


 


(f)          change
any provision of this Section or the definition of “Required Lenders,” “Required Facility Lenders” or any
other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder
or make any determination or grant any consent hereunder, without the written consent of each Lender;


 


(g)          release
all or substantially all of the value of the Guaranty without the written consent of each Lender, except to the extent the release
of any Guarantor is permitted pursuant to Section 9.10 (in which case such release may be made by the Administrative Agent
acting alone);


 




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(h)          without
limiting the generality of clause (a) above, waive any condition set forth in Section 4.02 as to any Credit Extension without the
written consent of the Required Lenders and the Required Facility Lenders under the Revolving Credit Facility; or


 


(i)          impose
any greater restriction on the ability of any Lender under a Facility to assign any of its rights or obligations hereunder without
the written consent of the Required Facility Lenders under such Facility;


 


and, provided further,
that (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required
above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit
issued or to be issued by it; and (ii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve
or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the
consent of all Lenders or each affected Lender, or all Lenders or each affected Lender under a Facility, may be effected with the
consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not
be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent
of all Lenders or each affected Lender, or all Lenders or each affected Lender under a Facility, that by its terms affects any
Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting
Lender.


 


10.02     Notices;
Effectiveness; Electronic Communication.


 


(a)          Notices
Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except
as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, and
all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:


 


(i)          if
to the Borrower or any other Loan Party, the Administrative Agent or the L/C Issuer, to the address, facsimile number, electronic
mail address or telephone number specified for such Person on Schedule 10.02; and


 


(ii)         if
to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative
Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire
then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).


 


Notices and other communications
sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received;
notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during
normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day
for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection
(b) below, shall be effective as provided in such subsection (b).


 




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(b)          Electronic
Communications. Notices and other communications to the Lenders and the L/C Issuer hereunder may be delivered or furnished
by electronic communication (including e-mail, FpML messaging, and Internet or intranet websites) pursuant to procedures approved
by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C Issuer pursuant
to Article II if such Lender or the L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable
of receiving notices under such Article by electronic communication. The Administrative Agent, the L/C Issuer or the Borrower may
each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant
to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.


 


Unless the Administrative
Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet
or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described
in the foregoing clause (i) of notification that such notice or communication is available and identifying the website
address therefor; provided that, for both clauses (i) and (ii), if such notice, email or other communication
is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been
sent at the opening of business on the next business day for the recipient.


 


(c)          The
Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY
FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative
Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower,
any Lender, the L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of the Borrower’s, any Loan Party’s or the Administrative Agent’s transmission
of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through
the Internet.


 




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(d)          Change
of Address, Etc. Each of the Borrower, the Administrative Agent and the L/C Issuer may change its address, facsimile or telephone
number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address,
facsimile or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent
and the L/C Issuer. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative
Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender
agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private
Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public
Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United
States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public
Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower
or its securities for purposes of United States Federal or state securities laws.


 


(e)          Reliance
by Administrative Agent, L/C Issuer and Lenders. The Administrative Agent, the L/C Issuer and the Lenders shall be entitled
to rely and act upon any notices (including telephonic notices, Committed Loan Notices and Letter of Credit Applications) purportedly
given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were
not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, the L/C Issuer, each Lender and the
Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on
each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other telephonic communications with
the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.


 


10.03     No
Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, the L/C Issuer or the Administrative Agent to
exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other
Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.


 




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Notwithstanding anything
to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under
the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings
at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance
with Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided, however, that the foregoing
shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit
(solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer from exercising
the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer) hereunder and under the other Loan Documents,
(c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13),
or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding
relative to any Loan Party under any Debtor Relief Law; and provided, further, that if at any time there is no Person
acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights
otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in
clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.13, any Lender may, with
the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.


 


10.04     Expenses;
Indemnity; Damage Waiver.


 


(a)          Costs
and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and
its Affiliates (including the reasonable fees, charges and disbursements of counsel for the Administrative Agent), in connection
with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration
of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer
(including the fees, charges and disbursements of any counsel for the Administrative Agent, any Lender or the L/C Issuer), and
shall pay all fees and time charges for attorneys who may be employees of the Administrative Agent, any Lender or the L/C Issuer,
in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents,
including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters
of Credit.


 




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(b)          Indemnification
by the Borrower. The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and reasonable related expenses
(including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee
from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee
or asserted against any Indemnitee by any Person (including the Borrower or any other Loan Party) other than such Indemnitee and
its Related Parties arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of
their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or,
in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement
and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit
or the use or proposed use of the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated
by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries,
or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether
based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and regardless
of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or reasonable related expenses (x) are determined by a court
of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct
of such Indemnitee or (y) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach
in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party
has obtained a final and non-appealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
Without limiting the provisions of Section 3.01(c), this Section 10.4(b) shall not apply with respect to Taxes other than
any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.


 


(c)          Reimbursement
by Lenders. To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under subsection (a)
or (b) of this Section to be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any
Related Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent),
the L/C Issuer or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought based on each Lender’s share of the Total Credit Exposure
at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender), such payment
to be made severally among them based on such Lenders’ Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought), provided, further that, the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or
any such sub-agent), the L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent), the L/C Issuer in connection with such capacity. The obligations of the Lenders under
this subsection (c) are subject to the provisions of Section 2.12(d).


 


(d)          Waiver
of Consequential Damages, Etc. To the fullest extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, and acknowledges that no other Person shall have, any claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection
(b) above shall be liable for any damages arising from the use by unintended recipients of any information or other materials
distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other
than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by
a final and non-appealable judgment of a court of competent jurisdiction.


 




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(e)          Payments.
All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.


 


(f)          Survival.
The agreements in this Section and the indemnity provisions of Section 10.02(e) shall survive the resignation of the Administrative
Agent and the L/C Issuer, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction
or discharge of all the other Obligations.


 


10.05     Payments
Set Aside. To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, the L/C Issuer
or any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises its right of setoff, and such payment or the
proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the Administrative Agent, the L/C Issuer or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief
Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred,
and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without
duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations
of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations
and the termination of this Agreement.


 


10.06     Successors
and Assigns. 


 


(a)          Successors
and Assigns Generally. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower
may not 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 subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject
to the restrictions of subsection (f) of this Section (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,
the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.


 




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(b)          Assignments
by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations) at the time owing to it); provided that (in each case with respect to any Facility) any
such assignment shall be subject to the following conditions:


 


(i)          Minimum
Amounts.


 


(A)         in
the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under any Facility and/or the
Loans at the time owing to it (in each case with respect to any Facility) or contemporaneous assignments to related Approved Funds
(determined after giving effect to such Assignments) that equal at least the amount specified in paragraph (b)(i)(B) of
this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum
amount need be assigned; and


 


(B)         in
any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans
of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption,
as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event
of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or
delayed).


 


(ii)         Proportionate
Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s
rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii)
shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non-pro
rata basis;


 


(iii)        Required
Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this
Section and, in addition:


 


(A)         the
consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default
has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or
an Approved Fund; provided that the Borrower
shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative
Agent within five (5) Business Days after having received notice thereof; and provided, further, that the Borrower’s
consent shall not be required during the primary syndication of the Facilities;


 




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(B)         the
consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments
in respect of any Revolving Credit Commitment if such assignment is to a Person that is not a Lender with a Commitment in respect
of the applicable Facility, an Affiliate of such Lender or an Approved Fund with respect to such Lender; and


 


(C)         the
consent of the L/C Issuer shall be required for any assignment in respect of the Revolving Credit Facility.


 


(iv)        Assignment
and Assumption. The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee in the amount of $3,500; provided, however, that the Administrative
Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee,
if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.


 


(v)         No
Assignment to Certain Persons. No such assignment shall be made (A) to the Borrower or any of the Borrower’s Affiliates
or Subsidiaries, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural Person (or a holding company,
investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person).


 


(vi)        Certain
Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such
assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the
assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution
thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata
share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor
hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the
Administrative Agent, the L/C Issuer or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate)
its full pro rata share of all Loans and participations in Letters of Credit in accordance with its Applicable Percentage. Notwithstanding
the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective
under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed
to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.


 




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Subject to acceptance and
recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring
prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected
parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from
that Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note
to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply
with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with subsection (d) of this Section.


 


(c)          Register.
The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being solely for tax purposes),
shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent
thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts (and stated interest) of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and
the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by
the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.


 


(d)          Participations.
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 a holding company, investment vehicle or trust for, or owned and operated for the
primary benefit of a natural Person, a Defaulting Lender 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 Agreement
(including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations)
owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower,
the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly with such Lender in connection
with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible
for the indemnity under Section 10.04(c) without regard to the existence of any participation.


 




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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
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or
other modification described in the first proviso to Section 10.01 that affects such Participant. The Borrower agrees that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section (it being
understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation)
to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section;
provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 10.13 as if
it were an assignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections
3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation
would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in
Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at
the Borrower's request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section
3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section
2.13 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary
agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts
(and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant
Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments,
loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure
is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section
5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest
error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation
for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent
(in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.


 


(e)          Certain
Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations
to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.


 




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(f)          Resignation
as L/C Issuer after Assignment. Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns
all of its Revolving Credit Commitment and Revolving Credit Loans pursuant to subsection (b) above, Bank of America may,
upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer. In the event of any such resignation as L/C Issuer,
the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer hereunder; provided, however,
that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of America as L/C Issuer. If
Bank of America resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder
with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations
with respect thereto (including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations
in Unreimbursed Amounts pursuant to Section 2.03(c)). Upon the appointment of a successor L/C Issuer, (a) such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer, and (b) the
successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangements satisfactory to Bank of America to effectively assume the obligations of Bank of America
with respect to such Letters of Credit.


 


10.07     Treatment
of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain
the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and
to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any
regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority,
such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder
or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement
of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section,
to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations
under this Agreement or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other
transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder,
(g) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or the credit
facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring
of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of
the Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section
or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential
basis from a source other than the Borrower. In addition, the Administrative Agent and the Lenders may disclose the existence
of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry
and service providers to the Agents and the Lenders in connection with the administration of this Agreement, the other Loan Documents,
and the Commitments.


 


For purposes of this Section,
“Information” means all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender
or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary, provided that, in the case
of information received from the Borrower or any Subsidiary after the date hereof, such information is clearly identified at the
time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section
shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain
the confidentiality of such Information as such Person would accord to its own confidential information.


 




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Each of the Administrative
Agent, the Lenders and the L/C Issuer acknowledges that (a) the Information may include material non-public information concerning
the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public
information and (c) it will handle such material non-public information in accordance with applicable Law, including United States
Federal and state securities Laws.


 


10.08     Right
of Setoff. If an Event of Default shall have occurred and be continuing, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off
and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held
and other obligations (in whatever currency) at any time owing by such Lender, the L/C Issuer or any such Affiliate to or for
the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under
this Agreement or any other Loan Document to such Lender or the L/C Issuer or their respective Affiliates, irrespective of whether
or not such Lender, L/C Issuer or Affiliate shall have made any demand under this Agreement or any other Loan Document and although
such obligations of the Borrower may be contingent or unmatured or are owed to a branch, office or Affiliate of such Lender or
the L/C Issuer different from the branch, office or Affiliate holding such deposit or obligated on such indebtedness; provided,
that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid
over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending
such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the
Administrative Agent, the L/C Issuer and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative
Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such
right of setoff. The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in addition
to other rights and remedies (including other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates
may have. Each Lender and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff
and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.


 


10.09     Interest
Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be
paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum
Rate”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.
In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum
Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense,
fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate,
and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.


 




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10.10     Counterparts;
Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement, the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative
Agent or the L/C Issuer, 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. Except as provided
in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and
when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic
imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart
of this Agreement.


 


10.11     Survival
of Representations and Warranties. All representations and warranties made hereunder and in any other Loan Document or other
document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each
Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension,
and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.


 


10.12     Severability.
If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable
provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction. Without limiting the foregoing provisions of this Section 10.12, if and to the extent that the
enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined
in good faith by the Administrative Agent or the L/C Issuer, as applicable, then such provisions shall be deemed to be in effect
only to the extent not so limited.


 


10.13     Replacement
of Lenders.  If the Borrower is entitled to replace a Lender pursuant to the provisions of Section 3.06, or if
any Lender is a Defaulting Lender or a Non-Consenting Lender, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with
and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interests, rights (other
than its existing rights to payments pursuant to Sections 3.01 and 3.04) and obligations under this Agreement and
the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if
a Lender accepts such assignment), provided that:


 




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(a)          the
Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 10.06(b);


 


(b)          such
Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under
Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower
(in the case of all other amounts);


 


(c)          in
the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made
pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;


 


(d)          such
assignment does not conflict with applicable Laws; and


 


(e)          in
the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented
to the applicable amendment, waiver or consent.


 


A Lender shall not be required
to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.


 


10.14     Governing
Law; Jurisdiction; Etc.


 


(a)          GOVERNING
LAW. This Agreement and the other Loan Documents and any claims, controversy, dispute
or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other
Loan Document (except, as to any other Loan Document, as expressly set forth therein) and the transactions contemplated hereby
and thereby shall be governed by, and construed in accordance with, the law of the State of NEW yORK.


 


(b)          SUBMISSION
TO JURISDICTION. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY agrees that it will not
commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort
or otherwise, against the Administrative Agent, any Lender, the l/c Issuer, or any Related Party of the foregoing in any way relating
to this Agreement or any other Loan Document or the transactions relating hereto or thereto, in any forum other than THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE
JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER
LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS
OF ANY JURISDICTION.


 




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(c)          WAIVER
OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.


 


(d)          SERVICE
OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.
NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.


 


10.15     Waiver
of Jury Trial.  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
ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PERSON 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 AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 




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10.16     No
Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and
agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding
this Agreement provided by the Administrative Agent, the Arranger, and the Lenders are arm’s-length commercial transactions
between the Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Administrative Agent, the
Arranger, and the Lenders, on the other hand, (B) each of the Borrower and the other Loan Parties has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower and each other Loan Party
is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby
and by the other Loan Documents; (ii) (A) the Administrative Agent, the Arranger and each Lender is and has been acting solely
as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting
as an advisor, agent or fiduciary for the Borrower, any other Loan Party or any of their respective Affiliates, or any other Person
and (B) neither the Administrative Agent, the Arranger nor any Lender has any obligation to the Borrower, any other Loan Party
or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly
set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Arranger and the Lenders and their respective
Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower, the
other Loan Parties and their respective Affiliates, and neither the Administrative Agent, the Arranger, nor any Lender has any
obligation to disclose any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the
fullest extent permitted by law, the Borrower, for itself and on behalf of its Affiliates, hereby waives and releases any claims
that it may have against the Administrative Agent, the Arranger or any Lender with respect to any breach or alleged breach
of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.


 


10.17     Electronic
Execution of Assignments and Certain Other Documents. The words “execute,” “execution,” “signed,”
“signature,” and words of like import in or related to any document to be signed in connection with this Agreement
and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other modifications,
Committed Loan Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment
terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use
of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including
the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything
contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any
form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.


 


10.18     USA
PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III
of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information
that identifies the Borrower, which information includes the name and address of the Borrower and other information that will
allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in accordance with the Act. The Borrower
shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information
that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know
your customer” and anti-money laundering rules and regulations, including the Act.


 


10.19     Time
of the Essence. Time is of the essence of the Loan Documents.


 


[Signature Pages Follow.]


 




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IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed as of the date first above written.


 


	 	GAS NATURAL INC., an Ohio corporation
	 	 
	 	By	/s/ Gregory J. Osborne
	 	Name: 	Gregory J. Osborne
	 	Title:	President & Chief Executive Officer


 




     


     


    

 


	 	bank of america, n.a., as
	 	Administrative Agent
	 	 	 
	 	By:	/s/ Jonathan M. Phillips
	 	 	 
	 	Name: 	Jonathan M. Phillips
	 	 	 
	 	Title:	Senior Vice President


 




     


     


    

 


	 	bank of america, n.a., as a Lender, L/C Issuer
	 	 
	 	By:	/s/ Jonathan M. Phillips
	 	 	 
	 	Name: 	Jonathan M. Phillips
	 	 	 
	 	Title:	Senior Vice President