Exhibit 10.21


 





 



 


SENIOR SECURED SUPERPRIORITY DEBTOR-IN-POSSESSION


CREDIT AGREEMENT


 


DATED AS OF [______], 2019


 


AMONG


 


ORCHIDS PAPER PRODUCTS COMPANY,


AS DEBTOR AND DEBTOR IN POSSESSION AND AS
BORROWER,


 


THE LENDERS,


 


AND


 


BLACK DIAMOND COMMERCIAL FINANCE, L.L.C.,


AS ADMINISTRATIVE
AGENT 


 





 



 




    	 	 	 



     


    

 


Table of Contents


 


	 	 	Page
	 	 	 
	ARTICLE I DEFINITIONS	1
	 	 	 
	ARTICLE II THE CREDITS	17
	 	 	 
	2.1.	Commitment	17
	2.2.	Required Payments	18
	2.3.	Ratable Loans	18
	2.4.	Fees	18
	2.5.	Minimum Amount of Each Advance	18
	2.6.	Reduction in Aggregate Commitment	18
	2.7.	New Advances	19
	2.8.	Interest Rates	19
	2.9.	Rates Applicable After Event of Default	19
	2.10.	Method of Payment; Repayment of Loans	19
	2.11.	Noteless Agreement; Evidence of Indebtedness	20
	2.12.	Interest Payment Dates: Interest and Fee Basis	20
	2.13.	Notification of Advances and Commitment Reductions	20
	2.14.	Lending Installations	20
	2.15.	Non-Receipt of Funds by the Administrative Agent	21
	2.16.	Replacement of Lender	21
	2.17.	Limitation of Interest	22
	 	 	 
	ARTICLE III TAXES	23
	 	 	 
	3.1.	Changes in Capital Adequacy Regulations	23
	3.2.	Taxes	23
	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT	27
	 	 	 
	4.1.	Initial Credit Extension	27
	4.2.	Each Credit Extension	29
	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES	29
	 	 	 
	5.1.	Existence and Standing	29
	5.2.	Authorization and Validity	29
	5.3.	No Conflict; Government Consent	30
	5.4.	Financial Statements	30
	5.5.	Material Adverse Change	30
	5.6.	Taxes	30
	5.7.	Litigation and Contingent Obligations	31
	5.8.	Subsidiaries	31
	5.9.	ERISA	31
	5.10.	Accuracy of Information	31


 




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	5.11.	Regulation U	31
	5.12.	Material Agreements	31
	5.13.	Compliance With Laws	32
	5.14.	Ownership of Properties	32
	5.15.	Plan Assets; Prohibited Transactions	32
	5.16.	Environmental Matters	32
	5.17.	Investment Company Act	32
	5.18.	Insurance	32
	5.19.	No Default	32
	5.20.	Anti-Corruption Laws: Sanctions: Anti-Terrorism Laws	32
	 	 	 
	ARTICLE VI COVENANTS	33
	 	 	 
	6.1.	Financial Reporting	33
	6.2.	Use of Proceeds	35
	6.3.	Notice of Material Events	35
	6.4.	Conduct of Business	36
	6.5.	Taxes	36
	6.6.	Insurance	36
	6.7.	Compliance with Laws and Material Contractual Obligations	36
	6.8.	Maintenance of Properties	37
	6.9.	Books and Records; Inspection	37
	6.10.	Payment of Obligations	37
	6.11.	Indebtedness	37
	6.12.	Merger	37
	6.13.	Sale of Assets	38
	6.14.	Investments	38
	6.15.	Acquisitions	38
	6.16.	Liens	38
	6.17.	Affiliates	39
	6.18.	Sale and Leaseback Transactions	39
	6.19.	Financial Contracts	39
	6.20.	Restricted Payments	39
	6.21.	[Intentionally omitted.]	40
	6.22.	Further Assurances	40
	6.23.	OFAC, PATRIOT Act Compliance	40
	6.24.	Bankruptcy Related Covenants	41
	6.25.	Budgeted Expenses	42
	 	 	 
	ARTICLE VII DEFAULTS	43
	 	 	 
	ARTICLE VIII ACCELERATION. WAIVERS. AMENDMENTS AND REMEDIES	46
	 	 	 
	8.1.	Acceleration: Remedies	46
	8.2.	Application of Funds	47
	8.3.	Waivers and Amendments	47


 




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	8.4.	Preservation of Rights	48
	 	 	 
	ARTICLE IX GENERAL PROVISIONS	48
	 	 	 
	9.1.	Survival of Representations	48
	9.2.	Governmental Regulation	48
	9.3.	Headings	48
	9.4.	Entire Agreement	48
	9.5.	Several Obligations: Benefits of this Agreement	48
	9.6.	Expenses: Indemnification	49
	9.7.	Numbers of Documents	50
	9.8.	Accounting	50
	9.9.	Severability of Provisions	51
	9.10.	Nonliability of Lenders	51
	9.11.	Confidentiality	51
	9.12.	Nonreliance	52
	9.13.	Disclosure	52
	9.14.	USA PATRIOT ACT NOTIFICATION	52
	9.15.	Relationship with DIP Orders	52
	 	 	 
	ARTICLE X THE ADMINISTRATIVE AGENT	52
	 	 	 
	10.1.	Appointment: Nature of Relationship	52
	10.2.	Powers	53
	10.3.	General Immunity	53
	10.4.	No Responsibility for Loans.	53
	10.5.	Action on Instructions of Lenders	53
	10.6.	Employment of Administrative Agents and Counsel	54
	10.7.	Reliance on Documents; Counsel	54
	10.8.	Administrative Agent’s Reimbursement and Indemnification	54
	10.9.	Notice of Event of Default	55
	10.10.	Rights as a Lender	55
	10.11.	Lender Credit Decision	55
	10.12.	Successor Administrative Agent	56
	10.13.	Administrative Agent Fees	56
	10.14.	Delegation to Affiliates	56
	10.15.	Execution of Collateral Documents	56
	10.16.	Collateral Releases	57
	10.17.	Documentation Administrative Agent	57
	10.18.	No Advisory or Fiduciary Responsibility	57
	 	 	 
	ARTICLE XI SETOFF; RATABLE PAYMENTS	57
	 	 	 
	11.1.	Setoff	57
	11.2.	Ratable Payments	58


 




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	ARTICLE XII BENEFIT OF AGREEMENT: ASSIGNMENTS; PARTICIPATIONS	58
	 	 	 
	12.1.	Successors and Assigns	58
	12.2.	Participations	59
	12.3.	Assignments	60
	 	 	 
	ARTICLE XIII NOTICES	62
	 	 	 
	13.1.	Notices; Effectiveness: Electronic Communication	62
	 	 	 
	ARTICLE XIV COUNTERPARTS; INTEGRATION: EFFECTIVENESS: ELECTRONIC EXECUTION	63
	 	 	 
	14.1.	Counterparts: Effectiveness	63
	14.2.	Electronic Execution of Assignments	64
	 	 	 
	ARTICLE XV CHOICE OF LAW: CONSENT TO JURISDICTION: WAIVER OF JURY TRIAL	64
	 	 	 
	15.1.	CHOICE OF LAW	64
	15.2.	CONSENT TO JURISDICTION	64
	15.3.	WAIVER OF JURY TRIAL	64
	15.4.	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	64


 


SCHEDULES


 


	SCHEDULE 1	–	Commitments
	SCHEDULE 4.1(i)	_	Pending or Threatened Actions
	SCHEDULE 5.8	–	Subsidiaries
	SCHEDULE 5.14	–	Properties
	SCHEDULE 6.11	–	Indebtedness
	SCHEDULE 6.14	–	Investments
	SCHEDULE 6.16	–	Liens


 


EXHIBITS


 


	EXHIBIT A	–	Form of Compliance Certificate
	EXHIBIT B	–	Form of Assignment and Assumption Agreement
	EXHIBIT C-l	–	Form of Borrowing Notice
	EXHIBIT C-2	–	Form of Payment Notice


 




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SENIOR SECURED SUPERPRIORITY DEBTOR-IN-POSSESSION


CREDIT AGREEMENT


 


This Senior Secured Superpriority
Debtor-in-Possession Credit Agreement (this “Agreement”), dated as of _______, 2019, is among Orchids Paper
Products Company, a Delaware corporation, as Debtor and Debtor in Possession, the Lenders that are party hereto, and Black Diamond
Commercial Finance, L.L.C., a Delaware limited liability company, as Administrative Agent.


 


PRELIMINARY STATEMENTS


 


On April 1, 2019 (the “Petition
Date”), the Borrower and certain of its Domestic Subsidiaries commenced chapter 11 case no.19-10729, et seq. (the
“Chapter 11 Cases”) by filing a voluntary petition for relief under chapter 11 of the Bankruptcy Code, with
the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”). The Borrower and such
Domestic Subsidiaries continue to operate their businesses and manage their properties as debtors and debtors in possession pursuant
to sections 1107(a) and 1108 of the Bankruptcy Code; and


 


The Borrower has requested
that the Lenders provide a revolving credit facility and the Lenders have indicated their willingness to lend, in each case on
the terms and conditions set forth herein.


 


AGREEMENT


 


The parties hereto agree
as follows:


 


ARTICLE
I


 


DEFINITIONS


 


As used in this Agreement:


 


“Acquisition”
means any transaction, or any series of related transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or substantially all of the assets of any firm, corporation
or limited liability company, or division thereof, whether through purchase of assets, merger or otherwise or (ii) directly or
indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting power for the election of directors (other than
securities having such power only by reason of the happening of a contingency) or a majority (by percentage or voting power) of
the outstanding ownership interests of a partnership or limited liability company.


 


“Administrative
Agent” means BDCF in its capacity as contractual representative of the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Administrative Agent appointed pursuant to Article X.


 




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“Advance”
means a borrowing hereunder of Loans made by some or all of the Lenders on the same Borrowing Date.


 


“Affected Foreign
Subsidiary” means any Foreign Subsidiary to the extent such Foreign Subsidiary acting as a Guarantor would cause a Deemed
Dividend Problem.


 


“Affected Lender”
is defined in Section 2.16.


 


“Affiliate”
of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person,
including, without limitation, such Person’s Subsidiaries. A Person shall be deemed to control another Person if the controlling
Person owns 25% or more of any class of voting securities (or other ownership interests) of the controlled Person or possesses,
directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether
through ownership of stock, by contract or otherwise.


 


“Aggregate Commitment”
means the aggregate of the Commitments of all the Lenders, as reduced from time to time pursuant to Section 2.6. As of the date
of this Agreement, the Aggregate Commitment is $11,000,000.


 


“Aggregate Outstanding
Credit Exposure” means, at any time, the aggregate of the Outstanding Credit Exposure of all the Lenders.


 


“Agreement”
means this Senior Secured Superpriority Debtor-in-Possession Credit Agreement, as it may be amended or modified and in effect from
time to time. The term “Agreement” includes all Schedules and Exhibits attached hereto.


 


“Anti-Corruption
Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower or its Subsidiaries from
time to time concerning or relating to bribery or corruption.


 


“Applicable Pledge
Percentage” means 100% but 65% in the case of a pledge by the Borrower or any Domestic Subsidiary of its equity interests
in an Affected Foreign Subsidiary.


 


“Applicable Rate”
means, for any day, a rate per annum equal to twelve percent (12%).


 


“Approved Budget”
has the meaning specified in Section 6.25.


 


“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.


 


“Article”
means an article of this Agreement unless another document is specifically referenced.


 


“Authorized Officer”
means any of the President, Chief Executive Officer, Chief Financial Officer, Interim Chief Strategy Officer and Secretary of the
Borrower, acting singly.


 




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“Available Commitment”
means, at any time, the Aggregate Commitments then in effect minus the aggregate Loans outstanding at such time.


 


“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability
of an EEA Financial Institution.


 


“Bail-In Legislation”
means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of
the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the
EU Bail-In Legislation Schedule.


 


“Bankruptcy Code”
means title 11, United States Code.


 


“Bankruptcy Court”
has the meaning specified in the recitals to this Agreement.


 


“BDCF”
means Black Diamond Commercial Finance, L.L.C., a Delaware limited liability company, in its individual capacity, and its successors.


 


“Borrower”
means Orchids Paper Products Company, a Delaware corporation, as debtor and debtor in possession.


 


“Borrowing Date”
means a date on which an Advance is made hereunder.


 


“Borrowing Notice”
is defined in Section 2.7.


 


“Business Day”
means (i) with respect to any borrowing or payment, a day (other than a Saturday or Sunday) on which banks generally are open in
Chicago, Illinois for the conduct of substantially all of their commercial lending activities, interbank wire transfers can be
made on the Fedwire system and (ii) for all other purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in New York City, New York, for the conduct of substantially all of their commercial lending activities and interbank wire
transfers can be made on the Fedwire system.


 


“Capitalized Lease”
of a Person means any lease of Property by such Person as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with GAAP.


 


“Capitalized Lease
Obligations” of a Person means the amount of the obligations of such Person under Capitalized Leases which would be shown
as a liability on a balance sheet of such Person prepared in accordance with GAAP.


 


“Carve Out Trigger
Notice” means written notice from the Administrative Agent to the Borrower, its lead counsel, the U.S. Trustee and lead
counsel to the Creditors’ Committee of the occurrence and during the continuance of an Event of Default.


 


“Case Professionals”
means Persons or firms retained by the Borrower or the Creditors’ Committee or other statutory committee appointed in the
Chapter 11 Cases pursuant to sections 327, 363 and 1103 of the Bankruptcy Code.


 




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“Cash Equivalent
Investments” means (i) short-term obligations of, or fully guaranteed by, the United States of America, (ii) commercial
paper rated A-1 or better by S&P or P-1 or better by Moody’s, (iii) demand deposit accounts maintained in the ordinary
course of business, and (iv) certificates of deposit issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $500,000,000, provided in each case that the same provides for payment of both principal
and interest (and not principal alone or interest alone) and is not subject to any contingency regarding the payment of principal
or interest and (v) shares of money market mutual funds that are rated at least “AAAm” or “AAAG” by S&P
or “P-1” or better by Moody’s.


 


“Change”
as used in Article III of this Agreement, means (i) any change after the date of this Agreement in the Risk-Based Capital Guidelines
or (ii) any adoption of or change in any other law, governmental or quasi-governmental rule, regulation, policy, guideline, interpretation,
or directive (whether or not having the force of law) or in the interpretation, promulgation, implementation or administration
thereof after the date of this Agreement which affects the amount of capital required or expected to be maintained by any Lender
or any Lending Installation or any corporation controlling any Lender.


 


“Chapter 11 Cases”
has the meaning provided in the recitals to this Agreement.


 


“Closing Date”
means [_____], 2019.


 


“Code”
means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.


 


“Collateral”
means any and all Property in which a security interest or Lien is or is required to be granted to secure the Obligations, and
any and all other Property now existing or hereafter acquired that may be or become subject to a security Interest or Lien to secure
the Obligations.


 


“Collateral Documents”
means, collectively, the Security Agreement, the Mexico Collateral Documents, and all other agreements, instruments and documents
that are intended to create, perfect or evidence Liens upon the Collateral as security for payment of the Obligations, including
without limitation, all other security agreements, pledge agreements, financing statements, Mortgages, assignments and deeds of
trust, whether heretofore, now, or hereafter executed by the Loan Parties or any of their Subsidiaries and delivered to the Administrative
Agent.


 


“Commitment”
means, for each Lender, the obligation, if any, of such Lender to make Loans to the Borrower, expressed as an amount representing
the maximum possible aggregate principal amount of such Lender’s Loans outstanding hereunder. The initial amount of each
Lender’s Commitment is set forth on Schedule 1, as it may be modified (i) pursuant to Sections 2.6, (ii) as a result
of any assignment that has become effective pursuant to Section 12.3(c), or (iii) otherwise from time to time pursuant to the terms
hereof. As of the date of this Agreement, the aggregate amount of the Lenders’ Commitments is $11,000,000.


 


“Commitment Fee”
is defined in Section 2.4.


 




    	 	4	 



     


    

 


“Commodity Exchange
Act” means the Commodity Exchange Act (7 U.S.C. § 1, et seq.), as amended from time to time, and any successor
statute.


 


“Consolidated
Net Income” means, with reference to any period, the net income (or loss) of the Borrower and its Subsidiaries calculated
on a consolidated basis for such period.


 


“Contingent Obligation”
of a Person means any agreement, undertaking or arrangement by which such Person assumes, guarantees, endorses, contingently agrees
to purchase or provide funds for the payment of, or otherwise becomes or is contingently liable upon, the obligation or liability
of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person, or
otherwise assures any creditor of such other Person against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general partner of a partnership with respect to the liabilities
of the partnership.


 


“Credit Extension”
means the making of an Advance.


 


“Creditors’
Committee” means any official committee of creditors formed, appointed or approved in the Chapter 11 Cases pursuant to
the Bankruptcy Code.


 


“Deemed Dividend
Problem” means, with respect to any Foreign Subsidiary, such Foreign Subsidiary’s accumulated and undistributed
earnings and profits being deemed to be repatriated to the Borrower or the applicable parent Domestic Subsidiary under Section
956 of the Code and the effect of such deemed repatriation causing materially adverse tax consequences to the Borrower or such
parent Domestic Subsidiary, in each case as determined by the Borrower in its commercially reasonable judgment acting in good faith
and in consultation with its legal and tax advisors.


 


“Default”
means an event which but for the lapse of time or the giving of notice, or both, would constitute an Event of Default.


 


“Deposits”
is defined in Section 11.1.


 


“DIP Orders”
means and refers to the Interim Borrowing Order and the Final Borrowing Order.


 


“Dollar”
and “$” means the lawful currency of the United States of America.


 


“Domestic Subsidiary”
means a Subsidiary of the Borrower incorporated or organized under the laws of the United States of America, any state thereof
or the District of Columbia.


 


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


 




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


 


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


 


“Effective Date”
means the date on which the conditions specified in Section 4.1 are satisfied.


 


“Eligible Assignee”
means any Person except a natural Person, the Borrower or any of the Borrower’s Affiliates or Subsidiaries.


 


“Environmental
Laws” means any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances,
rules, judgments, orders, decrees, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other
governmental restrictions relating to (i) the protection of the environment, (ii) personal injury or property damage relating to
the release or discharge of Hazardous Materials, (iii) emissions, discharges or releases of pollutants, contaminants, hazardous
substances or wastes into surface water, ground water or land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous substances or wastes or the clean-up or other remediation
thereof.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any rule or regulation issued thereunder.


 


“ERISA Affiliate”
means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.


 


“ERISA Event”
means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect
to a Plan (other than an event for which the 30-day notice period is waived); (b) the failure with respect to any Plan to satisfy
the “minimum funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(c) of the Code or Section 303(c) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the
PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal of the Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate
of any notice, concerning the imposition upon the Borrower or any of its ERISA Affiliates of withdrawal liability under Section
4201 of ERISA or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the
meaning of Title IV of ERISA.


 




    	 	6	 



     


    

 


“EU”
means the European Union.


 


“EU Bail-In Legislation
Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person),
as in effect from time to time.


 


“Event of Default”
is defined in Article VII.


 


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


 


“Excluded Taxes”
means, in the case of each Lender or applicable Lending Installation, and the Administrative Agent, (i) Taxes imposed on its overall
net income, franchise Taxes, and branch profits Taxes imposed on it, by the respective jurisdiction under the laws of which such
Lender or the Administrative Agent is incorporated or is organized or in which its principal executive office is located or, in
the case of a Lender, in which such Lender’s applicable Lending Installation is located, (ii) in the case of a Non-U.S. Lender,
any withholding tax that is imposed on amounts payable to such Non-U.S. Lender pursuant to the laws in effect at the time such
Non-U.S. Lender becomes a party to this Agreement or designates a new Lending Installation, except in each case to the extent that,
pursuant to Section 3.2(a), 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 Installation, or is attributable
to the Non-U.S. Lender’s failure to comply with Section 3.2(f), and (iii) any U.S. federal withholding taxes imposed by FATCA.


 


“Exhibit”
refers to an exhibit to this Agreement, unless another document is specifically referenced.


 


“Facility Termination
Date” means September 30, 2019, or any earlier date on which the Aggregate Commitment is reduced to zero or otherwise
terminated pursuant to the terms hereof.


 


“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.


 




    	 	7	 



     


    

 


“Federal Funds
Effective Rate” means, for any day, the greater of (a) zero percent (0.0%) and (b) the rate per annum calculated by the
Federal Reserve Bank of New York based on such day's federal funds transactions by depository institutions (as determined in such
manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next
succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate or, if such rate is not so
published for any day which is a Business Day, the average of the quotations at approximately 10:00 a.m. (Central time) on such
day on such transactions received by the Administrative Agent from three (3) Federal funds brokers of recognized standing selected
by the Administrative Agent in its sole discretion.


 


“Fee Letter”
is defined in Section 10.13.


 


“Final Borrowing
Order” means an order of the Bankruptcy Court which order shall be in form, scope and substance acceptable to the Borrower,
the Administrative Agent and the Required Lenders, which, among other matters but not by way of limitation, authorizes the Borrower
to obtain credit, incur (or guaranty) Obligations, grant Liens under this Agreement, the other Loan Documents, and the DIP Orders,
and provides for the super priority of the Administrative Agent’s and the Lenders’ claims, which order is a Final Order.


 


“Financial Contract”
of a Person means (i) any exchange-traded or over-the-counter futures, forward, swap or option contract or other financial instrument
with similar characteristics or (ii) any Rate Management Transaction.


 


“Foreign Subsidiary”
means any Subsidiary organized under the laws of a jurisdiction not located in the United States of America.


 


“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 business.


 


“GAAP”
means generally accepted accounting principles as in effect from time to time in the United States, applied in a manner consistent
with that used in preparing the financial statements referred to in Section 5.4, subject at all times to Section 9.8.


 


“Governmental
Authority” means the government of the United States of America 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, without limitation, any supra-national bodies such as the European Union or the European Central Bank) and any group
or body charged with setting financial accounting or regulatory capital rules or standards (including, without limitation, the
Financial Accounting Standards Board, the Bank for International Settlements or the Basel Committee on Banking Supervisory Practices
or any successor or similar authority to any of the foregoing).


 


“Guarantor”
means (i) Orchids Mexico (DE) Holdings, LLC, a Delaware limited liability company, (ii) Orchids Mexico (DE) Member, LLC, a Delaware
limited liability company, (iii) the Mexico Subsidiary, (iv) Orchids South Carolina and (v) each Subsidiary that is a party to
the Guaranty, either on the date hereof or pursuant to the terms of Section 6.22, and their respective successors and assigns.


 




    	 	8	 



     


    

 


“Guaranty”
means that certain Guaranty or Guaranties dated as of the Closing Date executed by each of the Guarantors in favor of the Administrative
Agent, for the ratable benefit of the Lenders, as amended, restated, ratified, supplemented or otherwise modified, renewed or replaced
from time to time pursuant to the terms hereof and thereof.


 


“Hazardous Material”
means any explosive or radioactive substances or wastes, any 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 any other substances or wastes of any nature regulated pursuant to any Environmental Law.


 


“Highest Lawful
Rate” means, on any day, the maximum non-usurious rate of interest permitted for that day by applicable federal or state
law stated as a rate per annum.


 


“Indebtedness”
of a Person means such Person’s (i) obligations for borrowed money (including the Obligations hereunder), (ii) obligations
representing the deferred purchase price of Property or services (other than accounts payable arising in the ordinary course of
such Person’s business payable on terms customary in the trade), (iii) obligations, whether or not assumed* secured by Liens
or payable out of the proceeds or production from Property now or hereafter owned or acquired by such Person, (iv) obligations
which are evidenced by notes, acceptances, or other instruments, (v) obligations to purchase securities or other Property arising
out of or in connection with the sale of the same or substantially similar securities or Property, (vi) Capitalized Lease Obligations,
(vii) obligations as an account party with respect to standby and commercial Letters of Credit, (viii) Contingent Obligations of
such Person, (ix) Net Mark-to-Market Exposure under Rate Management Transactions and other Financial Contracts, and (x) any other
obligation for borrowed money or other financial accommodation which in accordance with GAAP would be shown as a liability on the
consolidated balance sheet of such Person.


 


“Indemnified Taxes”
means 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, other than Excluded Taxes and Other Taxes.


 


“Interim Borrowing
Order” means an order entered by the Bankruptcy Court, in form, scope and substance as may be acceptable to the Borrower,
the Administrative Agent and the Required Lenders, authorizing, on an interim basis, inter alia the Borrower to obtain credit and
incur (or guaranty) Obligations, granting Liens to secure the Obligations, and providing for the super priority of the Administrative
Agent’s and the Lenders’ claims.


 


“Interim Chief
Strategy Officer” means Richard Infantino, individually, and his firm, Deloitte Transactions and Business Analytics LLP.


 




    	 	9	 



     


    

 


“Investment”
of a Person means (a) any loan, advance (other than commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts receivable arising in the ordinary course of business on
terms customary in the trade) or contribution of capital by such Person; (b) stocks, bonds, mutual funds, partnership interests,
notes, debentures or other securities (including warrants or options to purchase securities) owned by such Person; (c) any deposit
accounts and certificate of deposit owned by such Person; and (d) structured notes, derivative financial instruments and other
similar instruments or contracts owned by such Person.


 


“Investment Banker”
means Houlihan Lokey Capital, Inc.


 


“Lenders”
means the lending institutions listed on the signature pages of this Agreement and their respective successors and assigns.


 


“Lending Installation”
means, with respect to a Lender or the Administrative Agent, the office, branch, subsidiary or affiliate of such Lender or the
Administrative Agent listed on the signature pages hereof (in the case of the Administrative Agent) or on its Administrative Questionnaire
(in the case of a Lender) or otherwise selected by such Lender or the Administrative Agent pursuant to Section 2.14.


 


“Letter of Credit”
of a Person means a letter of credit or similar instrument which is issued upon the application of such Person or upon which such
Person is an account party or for which such Person is in any way liable.


 


“Lien”
means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation,
the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement).


 


“Loan”
means, with respect to a Lender, such Lender’s loan made pursuant to its commitment to lend set forth in Section 2.1(a).


 


“Loan Documents”
means this Agreement, the Collateral Documents, the Guaranty, any Note or Notes executed by the Borrower in connection with this
Agreement and payable to a Lender, and any other document or agreement, now or in the future, executed by the Borrower for the
benefit of the Administrative Agent or any Lender in connection with this Agreement.


 


“Loan Party”
or “Loan Parties” means, individually or collectively, the Borrower and the Guarantors.


 


“M3 Purported
Liens” means the purported mechanic’s and/or other liens recorded and otherwise asserted by M3 Construction, Inc.
against the Property owned by Orchids South Carolina, as set forth in that certain Complaint filed by M3 Construction, Inc. against
the Borrower and Orchids South Carolina, among others, in the Court of Common Pleas, State of South Carolina, County of Barnwell,
Case No. 2019CP0600014.


 




    	 	10	 



     


    

 


“Material Adverse
Effect” means a material adverse effect on (a) the business, Property, liabilities (actual and contingent), operations
or condition (financial or otherwise), or results of operations of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of the Borrower or any Guarantor to perform its obligations under the Loan Documents to which it is a party, or (c) the
validity or enforceability of any of the Loan Documents or the rights or remedies of the Administrative Agent or the Lenders under
the Loan Documents; provided, however, that, for the purposes of clause (a), a Material Adverse Effect shall
not be deemed to include events, occurrences, facts, conditions or changes arising out of, relating to or resulting from: (i) changes
in the price or trading volume of the Borrower’s common stock; (ii) the announcement of the transactions contemplated by
this Agreement; (iii) the announcement of the transactions contemplated by the Sale Motion; or (iv) the commencement or pendency
of the Chapter 11 Cases.


 


“Mexico Asset
Purchase Transaction” means the purchase of assets by the Mexico Subsidiary pursuant to that certain Asset Purchase Agreement
dated as of May 5, 2014 by and among Orchids Mexico (DE) Holdings, LLC, Fabrica De Papel San Francisco, S.A. DE L.V. and Borrower.


 


“Mexico Collateral
Documents” means all documents reasonably required by Administrative Agent for the Administrative Agent to receive a
first perfected lien or security interest in the ownership interests of the Mexico Subsidiary.


 


“Mexico Lease
Agreement” means that certain Equipment Lease Agreement dated June 3, 2014, by and between the Mexico Subsidiary, as
lessor, and Fabrica de Papel San Francisco, S.A. de C.V., as Lessee, as such equipment lease agreement is modified or amended from
time to time.


 


“Mexico Subsidiary”
means OPP Acquisition Mexico, S. de R.L. de C.V., a Limited Liability Company of Variable Capital (Sociedad de Responsabilidad
Limitada de Capital Variable).


 


“Mexico Supply
Agreement” means that certain Product Supply Agreement dated as of June 3, 2014, by and between Borrower, as customer,
and Fabrica de Papel San Francisco, S.A. de C.V., as supplier, as such Product Supply Agreement is modified or amended from time
to time.


 


“Mexico Trademark
Agreement” means that certain Trademark License Agreement dated June 3, 2014 by and among Fabrica de Papel San Francisco,
S.A. de C.V., and Golden Gate Paper Company, Incorporated, a California corporation, as licensors, and Borrower and Mexico Subsidiary,
as licensees.


 


“Mexico Transaction”
means the purchase of assets by the Mexico Subsidiary under the Mexico Asset Purchase Transaction and the closing of the Mexico
Supply Agreement and the Mexico Lease Agreement.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Mortgages”
means any mortgage, deed of trust or other agreement which conveys or evidences a Lien in favor of the Administrative Agent, for
the benefit of the Administrative Agent and the Lenders, on real property of a Loan Party, including, without limitation, the Oklahoma
Mortgage and the South Carolina Mortgage and further including any amendment, modification or supplement thereto.


 




    	 	11	 



     


    

 


“Multiemployer
Plan” means a Plan maintained pursuant to a collective bargaining agreement or any other arrangement to which the Borrower
or any ERISA Affiliate is a party to which more than one employer is obligated to make contributions.


 


“Net Mark-to-Market
Exposure” of a Person means, as of any date of determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions. “Unrealized losses” means the fair market value of
the cost to such Person of replacing such Rate Management Transaction as of the date of determination (assuming the Rate Management
Transaction were to be terminated as of that date), and “unrealized profits” means the fair market value of the gain
to such Person of replacing such Rate Management Transaction as of the date of determination (assuming such Rate Management Transaction
were to be terminated as of that date).


 


“Non-U.S. Lender”
means a Lender that is not a United States person as defined in Section 7701(a)(30) of the Code.


 


“Note”
is defined in Section 2.11(d).


 


“Obligations”
means all unpaid principal of and accrued and unpaid interest on the Loans, all Rate Management Obligations provided to the Borrower
or any Subsidiary by the Administrative Agent or any other Lender or any Affiliate of any of the foregoing, all accrued and unpaid
fees, and all expenses, reimbursements, indemnities and other obligations of the Borrower to the Lenders or to any Lender, the
Administrative Agent or any indemnified party arising under the Loan Documents; provided, that “Obligations”
shall exclude all Excluded Swap Obligations.


 


“OFAC”
means the U.S. Department of the Treasury’s Office of Foreign Assets Control, and any successor thereto.


 


“Oklahoma Mortgage”
means that certain first priority Mortgage, Security Agreement, Financing Statement and Assignment of Rents and Leases, dated as
of the Closing Date, as the same may be further amended, restated, replaced, supplemented or otherwise modified from time to time.


 


“Orchids South
Carolina” means Orchid Paper Products Company of South Carolina, a Delaware corporation.


 


“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.


 


“Outstanding Credit
Exposure” means, as to any Lender at any time, the aggregate principal amount of its Loans outstanding at such time.


 


“Participant”
is defined in Section 12.2(a).


 


“Participant Register”
is defined in Section 12.2(c).


 




    	 	12	 



     


    

 


“PATRIOT Act”
means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended from time to time, and any
successor statute.


 


“Payment Date”
means the first (1st) day of each month, provided, that if such day is not a Business Day, the Payment Date shall be the
immediately preceding Business Day.


 


“Payment Notice”
is defined in Section 2.6.


 


“PBGC”
means the Pension Benefit Guaranty Corporation, or any successor thereto.


 


“Person”
means any natural person, corporation, firm, joint venture, partnership, limited liability company, association, enterprise, trust
or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.


 


“Plan”
means an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code as to which the Borrower or any ERISA Affiliate may have any liability.


 


“Plan of Reorganization”
means a plan filed in the Chapter 11 Cases pursuant to chapter 11 of the Bankruptcy Code.


 


“Prepayment Price”
is defined in Section 2.4.


 


“Pre-Petition
Credit Agreement” means that certain Second Amended and Restated Credit Agreement dated as of June 25, 2015 by and among
the Borrower, as borrower, the Guarantors, as guarantors, Ankura Trust Company, as administrative agent (as successor to U.S. Bank
National Association) and the Lenders, as amended, restated, replaced and/or modified from time to time.


 


“Pre-Petition
Liabilities” means the “Obligations” as defined in the Pre-Petition Credit Agreement.


 


“Pre-Petition
Loan Documents” means the “Loan Documents” as defined in the Pre-Petition Credit Agreement.


 


“Professional
Fee Carve Out” shall mean a carve out from the Collateral securing the Obligations under the Loan Documents to ensure
payment of the following claims, expenses and costs: (i) all fees required to be paid to the Clerk of the Bankruptcy Court; (ii)
all statutory fees payable to the U.S. Trustee pursuant to 28 U.S.C. § 1930(a)(6) and 28 U.S.C. § 156(c); (iii) all accrued
and unpaid fees, disbursements, costs and expenses earned or incurred by Case Professionals to the extent allowed at any time,
on or after the Petition Date through and including the date of service by the Administrative Agent of a Carve Out Trigger Notice,
as limited by the respective Approved Budget amounts for each Case Professional or category of Case Professionals through the date
of service of said Carve Out Trigger Notice, whether allowed by the Bankruptcy Court prior to or after delivery of a Carve Out
Trigger Notice less the amount of pre-petition retainers received by such Case Professionals; and (iv) all accrued and unpaid fees,
disbursements, costs and expenses earned or incurred by the Case Professionals after the date of service of a Carve Out Trigger
Notice and not otherwise covered by clause (iii) above, to the extent allowed at any time, in an aggregate amount not to exceed
$500,000, less the amount of pre-petition retainers received by such Case Professionals and not applied to the fees, disbursements,
costs and expenses set forth in clause (iii) above. The Professional Fee Carve Out shall be reduced on a dollar for dollar basis
by any payments of fees or expenses by the Case Professionals.


 




    	 	13	 



     


    

 


“Property”
of a Person means any and all property, whether real, personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person.


 


“Pro Rata Share”
means, with respect to a Lender, a portion equal to a fraction the numerator of which is such Lender’s Commitment and the
denominator of which is the Aggregate Commitments, provided, however, if all of the Commitments are terminated pursuant
to the terms of this Agreement, then “Pro Rata Share” means the percentage obtained by dividing (i) the principal amount
of such Lender’s Loans outstanding at such time by (ii) the principal amount of all Lenders’ Loans outstanding at such
time.


 


“Purchasers”
is defined in Section 12.3(a).


 


“Rate Management
Obligations” means any and all obligations of the Borrower or any Subsidiary, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions
therefor), under (i) any and all Rate Management Transactions, and (ii) any and all cancellations, buy backs, reversals, terminations
or assignments of any Rate Management Transactions.


 


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


 


“Register”
is defined in Section 12.3(d).


 


“Regulation U”
means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of said Board of Governors relating to the extension of credit by banks for the purpose
of purchasing or carrying margin stocks applicable to member banks of the Federal Reserve System.


 


“Reports”
is defined in Section 9.6(a).


 


“Required Lenders”
means (i) if only one or two Lenders are party to this Agreement, Lenders holding 100% of the Aggregate Commitments or (ii) if
three or more Lenders are party to this Agreement, Lenders in the aggregate having greater than 50% of the Aggregate Commitment
or, if the Aggregate Commitment has been terminated, Lenders in the aggregate holding greater than 50% of the Aggregate Outstanding
Credit Exposure.


 




    	 	14	 



     


    

 


“Restricted Payment”
means any dividend or other distribution (whether in cash, securities or other Property) with respect to any equity interest in
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 equity interests
in the Borrower or any Subsidiary thereof or any option, warrant or other right to acquire any such equity interest in the Borrower
or any Subsidiary thereof.


 


“Risk-Based Capital
Guidelines” means (i) the risk-based capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations promulgated by regulatory authorities outside the United
States including transition rules, and any amendments to such regulations adopted prior to the date of this Agreement.


 


“S&P”
means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC business.


 


“Sale and Leaseback
Transaction” means any sale or other transfer of Property by any Person with the intent to lease such Property as lessee.


 


“Sale Motion”
means that certain motion or series of motions filed by the Borrower in the Chapter 11 Cases and acceptable to the Borrower, the
Administrative Agent and the Required Lenders in their respective discretion requesting approval for a Section 363 sale process
to sell the Borrower’s business and assets, which shall include a motion seeking authority to establish bidding procedures.


 


“Sanctioned Country”
means, at any time, any country, region or territory which is itself the subject or target of any comprehensive Sanctions.


 


“Sanctioned Person”
means, at any time, (a) any Person or group listed in any Sanctions-related list of designated Persons maintained by OF AC or the
U.S. Department of State, the United Nations Security Council, the European Union or any EU member state, (b) any Person or group
operating, organized or resident in a Sanctioned Country, (c) any agency, political subdivision or instrumentality of the government
of a Sanctioned Country, or (d) any Person 50% or more owned, directly or indirectly, by any of the above.


 


“Sanctions”
means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government,
including those administered by OF AC or the U.S. Department of State or (b) the United Nations Security Council, the European
Union or Her Majesty’s Treasury of the United Kingdom.


 


“Schedule”
refers to a specific schedule to this Agreement, unless another document is specifically referenced.


 




    	 	15	 



     


    

 


“Section”
means a numbered section of this Agreement, unless another document is specifically referenced.


 


“Security Agreement”
means that certain Security Agreement dated as of the Closing Date by and among the Loan Parties (other than the Mexico Subsidiary)
and the Administrative Agent, as amended, restated, supplemented or otherwise modified, renewed or replaced from time to time pursuant
to the terms hereof and thereof.


 


“South Carolina
Mortgage” means that certain Mortgage, Security Agreement, Financing Statement and Assignment of Rents and Leases, dated
as of the Closing Date, executed by Orchids South Carolina in favor of Administrative Agent for the benefit of the Lenders, as
the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.


 


“Stated Rate”
is defined in Section 2.17.


 


“Subsidiary”
of a Person means (i) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at
the time be owned or controlled, directly or indirectly, by such Person or by one or more Of its Subsidiaries or by such Person
and one or more of its Subsidiaries, or (ii) any partnership, limited liability company, association, joint venture or similar
business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned
or controlled. Unless otherwise expressly provided, all references herein to a “Subsidiary” shall mean a Subsidiary
of the Borrower,


 


“Substantial Portion”
means, with respect to the Property of the Borrower and its Subsidiaries, Property which represents more than 5% of the consolidated
assets of the Borrower and its Subsidiaries taken as a whole or Property which is responsible for more than 10% of the Consolidated
Net Income of the Borrower and its Subsidiaries taken as a whole, in each case, as would be shown in the consolidated financial
statements of the Borrower and its Subsidiaries as at the beginning of the twelve-month period ending with the month in which such
determination is made (or if financial statements have not been delivered hereunder for that month which begins the twelve-month
period, then the financial statements delivered hereunder for the quarter ending immediately prior to that month).


 


“Swap”
means any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the
Commodity Exchange Act.


 


“Swap Counterparty”
means, with respect to any swap with the Administrative Agent or any other Lender or any Affiliate of any of the foregoing, any
Person or entity that is or becomes a party to such swap.


 


“Swap Obligation”
means, with respect to any Guarantor, any obligation to pay or perform under any swap between the Administrative Agent or any other
Lender or any Affiliate of any of the foregoing and one or more Swap Counterparties.


 




    	 	16	 



     


    

 


“Taxes”
means any and all present or future taxes, duties, levies, imposts, deductions, fees, assessments, charges or withholdings, and
any and all liabilities with respect to the foregoing, including interest, additions to tax and penalties applicable thereto.


 


“Transferee”
is defined in Section 12.3(e).


 


“Variance Report”
means a report prepared by the Borrower’s management reflecting on a line-item basis (a) the Loan Parties’ actual performance
compared to (i) the Approved Budget applicable to the immediately preceding week and (ii) the then extant Approved Budget and all
prior approved Budgets applicable to the cumulative period on and after the Petition Date through the end of the immediately preceding
week, and (b) the percentage variance of the Loan Parties’ actual results from those reflected in the then extant Approved
Budget, along with management’s explanation, in reasonable detail, of any material variance.


 


“Wholly-Owned
Subsidiary” of a Person means (i) any Subsidiary of which 100% of the beneficial ownership interests shall at the time
be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such
Person and one or more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership, limited liability company, association,
joint venture or similar business organization of which 100% of the beneficial ownership interests shall at the time be so owned
or controlled.


 


“Write-Down and
Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such
EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down
and conversion powers are described in the EU Bail-In Legislation Schedule.


 


The foregoing definitions
shall be equally applicable to both the singular and plural forms of the defined terms.


 


ARTICLE
II


 


THE
CREDITS


 


2.1.         Commitment.
From and including the date of this Agreement and prior to the Facility Termination Date, each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make Loans to the Borrower, provided that, after giving effect to the
making of each such Loan, (i) the aggregate principal amount of such Lender’s outstanding Loans shall not exceed its Commitment,
and (ii) the aggregate principal amount of all Lenders’ outstanding Loans shall not exceed the lesser of (A) the Aggregate
Commitments and (B) the total outstanding DIP borrowings line item in the Approved Budget as of the week ended corresponding to
the Borrowing Date. All Loans shall be made in Dollars. Subject to the terms of this Agreement, the Borrower may borrow, repay
and reborrow the Loans at any time prior to the Facility Termination Date. Unless previously terminated, the Commitments shall
terminate on the Facility Termination Date.


 




    	 	17	 



     


    

 


2.2.         Required
Payments. (a) If at any time the amount of the aggregate principal amount of outstanding Loans exceeds the Aggregate
Commitment, the Borrower shall, within one (1) Business Day after discovery thereof, make a payment on the applicable Loans to
the extent necessary to reduce such principal amount to the amount of the Aggregate Commitment. The Aggregate Outstanding Credit
Exposure and all other unpaid Obligations under this Agreement and the other Loan Documents shall be paid in full by the Borrower
on the Facility Termination Date.


 


(b)          All
cash proceeds (net of reasonable and customary fees and commissions) received by any Loan Party in connection with (i) any payments
received by any Loan Party in connection with any insurance or condemnation policy that are not otherwise reinvested or held for
reinvestment within a six (6) month period, (ii) any issuance or sale of any equity interests, shares, interest, participations
or other equivalents (however designated) of capital stock of any corporation, any and all equivalent ownership (and profit) interests
in a Person (other than a corporation), securities convertible into or exchangeable for shares of capital stock of (or other ownership
of profit interests in) such Person, and any and all warrants, rights or options to purchase any of the foregoing, whether voting
or nonvoting, (iii) any incurrence of Indebtedness, and (iv) any disposition of assets by any Loan Party, other than Dispositions
permitted under Section 6.13(a) and (b) and dispositions under Section 6.13(c) if disposition proceeds do not exceed $250,000,
shall, in each case, be used no later than two (2) Business Days after receipt thereof to prepay Loans in an aggregate amount equal
to such proceeds.


 


2.3.         Ratable
Loans. Each Advance hereunder shall consist of Loans made from the several Lenders ratably according to their Pro Rata
Shares.


 


2.4.         Fees.
The Borrower agrees to pay to the Administrative Agent for the account of each Lender according to its Pro Rata Share (a) a commitment
fee (the “Commitment Fee”) at a per annum rate equal to 5.0% on the average daily Available Commitment from
the date hereof to and including the Facility Termination Date, payable in arrears on each Payment Date hereafter and on the Facility
Termination Date, (b) a closing fee equal to 2.5% of the aggregate principal amount of the Commitments as of the Closing Date,
payable on the Closing Date and (c) a fee equal to 2.5% of the aggregate principal amount of the Commitments as of the Closing
Date, payable on the Facility Termination Date; provided, however, that the fee set forth in this Section 2.4(c) shall not be payable
if (i) the Loans are indefeasibly repaid in full in cash from proceeds of an asset sale pursuant to the Sale Motion on the Facility
Termination Date and/or (ii) the Administrative Agent, the Lenders, and/or their Affiliates are the ultimate purchaser in the asset
sale pursuant to the Sale Motion on the Facility Termination Date or otherwise.


 


2.5.         Minimum
Amount of Each Advance. Each Advance shall be in the minimum amount of $100,000 and incremental amounts in integral
multiples of $25,000, provided, however, that any Advance may be in the amount of the Available Commitment.


 


2.6.         Reduction
in Aggregate Commitment. The Borrower may permanently reduce the Aggregate Commitments of the Lenders in whole, or in
part ratably among the Lenders in integral multiples of $1,000,000.00, upon at least five (5) Business Days’ prior written
notice to the Administrative Agent by Borrower in the form of Exhibit C-2 (a “Payment Notice”), which
notice shall specify the amount of any such reduction, provided, however, that the amount of the Aggregate Commitments
of the Lenders may not be reduced below the aggregate principal amount of outstanding Loans. All accrued Commitment Fees shall
be payable on the effective date of any termination of the obligations of the Lenders to make Credit Extensions hereunder.


 




    	 	18	 



     


    

  


2.7.         New
Advances. The Borrower shall give the Administrative Agent notice in the form of Exhibit C-l (a “Borrowing
Notice”), specifying the Borrowing Date, which shall be a Business Day, of such Advance and the aggregate amount of such
Advance. Borrower will deliver each Borrowing Notice to the Administrative Agent not later than 10:00 a.m. (Chicago time) three
(3) Business Days before the Borrowing Date of each Advance. Not later than 2:00 p.m. (Chicago time) on each Borrowing Date, each
Lender shall make available its Loan or Loans in funds immediately available to the Administrative Agent at its address specified
pursuant to Article XIII to be immediately provided to the Borrower on the Borrowing Date. The Administrative Agent will make the
funds so received from the Lenders available to the Borrower at the Administrative Agent’s aforesaid address.


 


2.8.         Interest
Rates. Each Advance shall bear interest on the outstanding principal amount thereof, for each day from and including
the date such Advance is made at a rate per annum equal to the Applicable Rate for such day.


 


2.9.         Rates
Applicable After Event of Default. Notwithstanding anything to the contrary contained in Section 2.8, during the continuance
of a Default or Event of Default the Required Lenders may, at their option, by notice from the Administrative Agent to the Borrower
(which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 8.3 requiring unanimous
consent of the Lenders to changes in interest rates), each Advance shall bear interest at a rate per annum equal to the Applicable
Rate in effect from time to time plus 2.0% per annum, provided that, during the continuance of an Event of Default
under Section 7.2, the interest rates set forth above shall be applicable to all Credit Extensions without any election or action
on the part of the Administrative Agent or any Lender. After an Event of Default has been waived, the interest rate applicable
to Advances shall revert to the rates applicable prior to the occurrence of an Event of Default.


 


2.10.       Method
of Payment; Repayment of Loans.


 


(a)          Each
Advance shall be repaid and each payment of interest thereon shall be paid in the currency in Dollars. All payments of the Obligations
under this Agreement and the other Loan Documents shall be made, without setoff, deduction, or counterclaim, in immediately available
funds to the Administrative Agent at the Administrative Agent’s address specified pursuant to Article XIII, or at any other
Lending Installation of the Administrative Agent specified in writing by the Administrative Agent to the Borrower, by 12:00 noon
(Chicago time) on the date when due and shall (except as otherwise specifically required hereunder) be applied ratably by the Administrative
Agent among the Lenders. Each payment delivered to the Administrative Agent for the account of any Lender shall be delivered promptly
by the Administrative Agent to such Lender in the same type of funds that the Administrative Agent received at its address specified
pursuant to Article XIII or at any Lending Installation specified in a notice received by the Administrative Agent from such Lender.


 


(b)          The
Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan on the Facility Termination Date.


 




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2.11.       Noteless
Agreement; Evidence of Indebtedness. (a) Each Lender shall maintain in accordance with its usual practice an account
or accounts evidencing the Indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender from time to
time, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.


 


(b)          The
Administrative Agent shall also maintain accounts in which it will record (i) the amount of each Loan made hereunder, (ii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder, and
(iii) the amount of any sum received by the Administrative Agent hereunder from the Borrower and each Lender’s share thereof.


 


(c)          The
entries maintained in the accounts maintained pursuant to paragraphs (a) and (b) above shall be prima facie evidence of
the existence and amounts of the Obligations therein recorded; provided, however, that the failure of the Administrative
Agent or any Lender to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower
to repay the Obligations in accordance with their terms.


 


(d)          Any
Lender may request that its Loans be evidenced by a promissory note (each, a “Note” and collectively, “Notes”).
In such event, the Borrower shall prepare, execute and deliver to such Lender such Note or Notes payable to the order of such Lender
in a form supplied by the Administrative Agent. Thereafter, the Loans evidenced by such Note or Notes and interest thereon shall
at all times (prior to any assignment pursuant to Section 12.3) be represented by one or more Notes payable to the order of the
payee named therein, except to the extent that any such Lender subsequently returns any such Note for cancellation and requests
that such Loans once again be evidenced as described in clauses (b) (i) and (ii) above.


 


2.12.       Interest
Payment Dates: Interest and Fee Basis. Interest accrued on each Advance shall be payable on each Payment Date, commencing
with the first such Payment Date to occur after the date hereof and on the Facility Termination Date. Interest accrued pursuant
to Section 2.9 shall be payable on demand. Interest on all Advances and fees shall be calculated for actual days elapsed on the
basis of a 360-day year. Interest shall be payable for the day an Advance is made but not for the day of any payment on the amount
paid if payment is received prior to 12:00 noon (Chicago time) at the place of payment.


 


2.13.       Notification
of Advances and Commitment Reductions. Promptly after receipt thereof, the Administrative Agent will notify each Lender
of the contents of each Commitment reduction notice, Borrowing Notice, and repayment notice received by it hereunder.


 


2.14.       Lending
Installations. Each Lender may book its Advances at any Lending Installation selected by such Lender and may change
its Lending Installation from time to time. All terms of this Agreement shall apply to any such Lending Installation and the Loans
and any Notes issued hereunder shall be deemed held by each Lender for the benefit of any such Lending Installation. Each Lender
may, by written notice to the Administrative Agent and the Borrower in accordance with Article XIII, designate replacement or additional
Lending Installations through which Loans will be made by it and for whose account Loan payments are to be made.


 




    	 	20	 



     


    

  


2.15.       Non-Receipt
of Funds by the Administrative Agent. Unless the Borrower or a Lender, as the case may be, notifies the Administrative
Agent prior to the date on which it is scheduled to make payment to the Administrative Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of the Borrower, a payment of principal, interest or fees to the Administrative Agent for
the account of the Lenders, that it does not intend to make such payment, the Administrative Agent may assume that such payment
has been made. The Administrative Agent may, but shall not be obligated to, make the amount of such payment available to the intended
recipient in reliance upon such assumption. If such Lender or the Borrower, as the case may be, has not in fact made such payment
to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative Agent, repay to the Administrative
Agent the amount so made available together with interest thereon in respect of each day during the period commencing on the date
such amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a
rate per annum equal to (x) in the case of payment by a Lender, the Federal Funds Effective Rate for such day for the first three
(3) days and, thereafter, the interest rate applicable to the relevant Loan or (y) in the case of payment by the Borrower, the
interest rate applicable to the relevant Loan.


 


2.16.       Replacement
of Lender. If the Borrower is required pursuant to Sections 3.1 or 3.2 to make any additional payment to any Lender
or if any Lender defaults in its obligation to make a Loan or declines to approve an amendment or waiver that is approved by the
Required Lenders (any Lender so affected an “Affected Lender”), the Borrower may elect, if such amounts continue
to be charged or such suspension is still effective, to replace such Affected Lender as a Lender party to this Agreement, provided
that no Default or Event of Default shall have occurred and be continuing at the time of such replacement, and provided further
that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrower and
the Administrative Agent shall agree, as of such date, to purchase for cash at par the Advances and other Obligations due to the
Affected Lender under this Agreement and the other Loan Documents pursuant to an assignment substantially in the form of Exhibit
B and to become a Lender for all purposes under this Agreement and to assume all obligations of the Affected Lender to be terminated
as of such date and to comply with the requirements of Section 12.3 applicable to assignments, and (ii) the Borrower shall pay
to such Affected Lender in same day funds on the day of such replacement all interest, fees and other amounts then accrued but
unpaid to such Affected Lender by the Borrower hereunder to and including the date of termination, including without limitation
payments due to such Affected Lender under Sections 3.1 and 3.2.


 




    	 	21	 



     


    

 


2.17.       Limitation
of Interest. The Borrower, the Administrative Agent and the Lenders intend to strictly comply with all applicable laws,
including applicable usury laws. Accordingly, the provisions of this Section 2.17 shall govern and control over every other provision
of this Agreement or any other Loan Document which conflicts or is inconsistent with this Section 2.17, even if such provision
declares that it controls. As used in this Section 2.17, the term “interest” includes the aggregate of all charges,
fees, benefits or other compensation which constitute interest under applicable law, provided that, to the maximum extent
permitted by applicable law, (a) any non-principal payment shall be characterized as an expense or as compensation for something
other than the use, forbearance or detention of money and not as interest, and (b) all interest at any time contracted for, reserved,
charged or received shall be amortized, prorated, allocated and spread, in equal parts during the full term of this Agreement.
In no event shall the Borrower or any other Person be obligated to pay, or any Lender have any right or privilege to reserve, receive
or retain, (a) any interest in excess of the maximum amount of nonusurious interest permitted under the applicable laws (if any)
of the United States or of any applicable state, or (b) total interest in excess of the amount which such Lender could lawfully
have contracted for, reserved, received, retained or charged had the interest been calculated for the full term of this Agreement
at the Highest Lawful Rate. On each day, if any, that the interest rate (the “Stated Rate”) called for under
this Agreement or any other Loan Document exceeds the Highest Lawful Rate, the rate at which interest shall accrue shall automatically
be fixed by operation of this sentence at the Highest Lawful Rate for that day, and shall remain fixed at the Highest Lawful Rate
for each day thereafter until the total amount of interest accrued equals the total amount of interest which would have accrued
if there were no such ceiling rate as is imposed by this sentence. Thereafter, interest shall accrue at the Stated Rate unless
and until the Stated Rate again exceeds the Highest Lawful Rate when the provisions of the immediately preceding sentence shall
again automatically operate to limit the interest accrual rate. The daily interest rates to be used in calculating interest at
the Highest Lawful Rate shall be determined by dividing the applicable Highest Lawful Rate per annum by the number of days in the
calendar year for which such calculation is being made. None of the terms and provisions contained in this Agreement or in any
other Loan Document which directly or indirectly relate to interest shall ever be construed without reference to this Section 2.17,
or be construed to create a contract to pay for the use, forbearance or detention of money at an interest rate in excess of the
Highest Lawful Rate. If the term of any Loan or any other Obligation outstanding hereunder or under the other Loan Documents is
shortened by reason of acceleration of maturity as a result of any Event of Default or by any other cause, and if for that (or
any other) reason any Lender at any time, including but not limited to, the stated maturity, is owed or receives (and/or has received)
interest in excess of interest calculated at the Highest Lawful Rate, then and in any such event all of any such excess interest
shall be canceled automatically as of the date of such acceleration or other event which produces the excess, and, if such excess
interest has been paid to such Lender, it shall be credited pro tanto against the then- outstanding principal balance of
the Borrower’s Obligations to such Lender, effective as of the date or dates when the event occurs which causes it to be
excess interest, until such excess is exhausted or all of such principal has been fully paid and satisfied, whichever occurs first,
and any remaining balance of such excess shall be promptly refunded to its payor.


 




    	 	22	 



     


    

  


ARTICLE
III


 


TAXES


 


3.1.         Changes
in Capital Adequacy Regulations. If a Lender determines the amount of capital or liquidity required or expected to be
maintained by such Lender, any Lending Installation of such Lender, or any corporation controlling such Lender is increased as
a result of a Change, then, within 15 days of demand by such Lender, the Borrower shall pay such Lender the amount necessary to
compensate for any shortfall in the rate of return on the portion of such increased capital which such Lender determines is attributable
to this Agreement, its Outstanding Credit Exposure or its Commitment to make Loans hereunder (after taking into account such Lender’s
policies as to capital adequacy and liquidity). Notwithstanding the foregoing, for purposes of this Agreement, all requests, rules,
guidelines or directives in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act shall be deemed to be
a Change regardless of the date enacted, adopted or issued and all requests, rules, guidelines or directives promulgated by the
Bank for International Settlements, the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar
authority) or the United States financial regulatory authorities shall be deemed to be a Change regardless of the date adopted,
issued, promulgated or implemented. Notwithstanding the foregoing, the Borrower shall not be required to compensate any Lender
pursuant to this Section 3.1 for any shortfall suffered more than 90 days prior to the date that such Lender notifies the Borrower
of the Change giving rise to such shortfall and of such Lender’s intention to claim compensation therefor; provided further,
that if the Change giving rise to such shortfall is retroactive, then the 90-day period referred to above shall be extended to
include the period of retroactive effect thereof.


 


3.2.         Taxes.


 


(a)          Any
and all payments by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or
withholding for any Taxes, except as required by applicable law. If any applicable law requires the deduction or withholding of
any Tax from any such payment, then the applicable Loan Party shall be entitled to make such deduction or withholding and shall
timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if
such Tax is an Indemnified Tax or Other Tax, then the sum payable by the applicable Loan Party shall be increased as necessary
so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional
sums payable under this Section 3.2) the applicable Lender or the Administrative Agent receives an amount equal to the sum it would
have received had no such deduction or withholding been made.


 


(b)          The
Loan Parties 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.


 


(c)          The
Loan Parties shall indemnify the Lenders or the Administrative Agent, within fifteen (15) days after demand therefor, for the full
amount of any Indemnified Taxes and Other Taxes (including Indemnified Taxes and Other Taxes imposed or asserted on or attributable
to amounts payable under this Section 3.2) payable or paid by such Lender or the Administrative Agent or required to be withheld
or deducted from a payment to such Lender or the Administrative Agent and any reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes and Other 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 by the Administrative
Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.


 




    	 	23	 



     


    

 


(d)          Each
Lender shall severally indemnify the Administrative Agent, within fifteen (15) days after demand therefor, for (i) any Indemnified
Taxes and Other Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative
Agent for such Indemnified Taxes and Other Taxes and without limiting the obligation of the Loan Parties to do so), (ii) any Taxes
attributable to such Lender’s failure to comply with the provisions of Section 12.2(c) relating to the maintenance of a Participant
Register, and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative
Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not
such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each
Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under
any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to
the Administrative Agent under this paragraph (d).


 


(e)          As
soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this Section 3.2, such
Loan Party 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 the return reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent and Required Lenders.


 


(f)           (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 3.2(f)(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,


 


(A)         any
Lender that is a United States Person for U.S. federal income Tax purposes 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 originals of IRS Form W-9 certifying that such Lender
is exempt from U.S. federal backup withholding Tax;


 




    	 	24	 



     


    

 


(B)         any
Non-U.S. 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 Non-U.S. 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:


 


(1)         in
the case of a Non-U.S. 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 originals of IRS Form W-8BEN 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 establishing an exemption from, or reduction of, U.S. federal
withholding Tax pursuant to the “business profits” or “other income” article of such Tax treaty;


 


(2)         executed
originals of IRS Form W-8ECI;


 


(3)         in
the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x)
a certificate to the effect that such Non-U.S. 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 and (y) executed originals of IRS Form W-8BEN; or


 


(4)         to
the extent a Non-U.S. Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI,
IRS Form W- 8BEN, IRS Form W-8IMY or IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable.


 


(C)         any
Non-U.S. 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 Non-U.S. 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 originals 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


 




    	 	25	 



     


    

 


(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.


 


(E)         For
purposes of determining withholding Taxes imposed under FATCA, from and after the date hereof, the Borrower and the Administrative
Agent shall treat (and the Lenders hereby authorize the Administrative Agent to treat) this Agreement as not qualifying as a “grandfathered
obligation” within the meaning of Treasury Regulation Section 1.1471- 2(b)(2)(i).


 


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


 


(g)          If
any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it
has been indemnified pursuant to this Section 3.2 (including by the payment of additional amounts pursuant to this Section 3.2),
it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under
this Section 3.2 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of
such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to
such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount
paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority)
in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything
to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying
party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position
than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund
had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or
any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.


 


(h)          Each
party’s obligations under this Section 3.2 shall survive the resignation or replacement of the Administrative Agent or any
assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all obligations under any Loan Document.


 




    	 	26	 



     


    

  


ARTICLE
IV


 


CONDITIONS
PRECEDENT


 


4.1.         Initial
Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless each of the
following conditions is satisfied:


 


(a)          The
Administrative Agent shall have received executed counterparts of each of this Agreement, the Security Agreement, the Mexico Collateral
Documents, the Guaranty and the Mortgages.


 


(b)          The
Administrative Agent shall have received a certificate, signed by the chief financial officer of the Borrower, stating that on
the date of the initial Credit Extension (1) no Default or Event of Default has occurred and is continuing and (2) the representations
and warranties contained in Article V are (x) with respect to any representations or warranties that contain a materiality qualifier,
true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate
solely to an earlier date, in which case such representation or warranty shall have been true and correct in all respects on and
as of such earlier date and (y) with respect to any representations or warranties that do not contain a materiality qualifier,
true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material
respects on and as of such earlier date.


 


(c)          [Intentionally
omitted.]


 


(d)          The
Administrative Agent shall have received any Notes requested by a Lender pursuant to Section 2.11 payable to the order of each
such requesting Lender.


 


(e)          The
Administrative Agent shall have received such documents and certificates relating to the organization, existence and good standing
of the Borrower and each initial Guarantor, the authorization of the transactions contemplated hereby and any other legal matters
relating to the Borrower and such Guarantors, the Loan Documents or the transactions contemplated hereby, all in form and substance
satisfactory to the Administrative Agent, the Required Lenders and their respective counsel.


 


(f)           The
Administrative Agent shall have received, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.


 


(g)          Other
than events leading up to and resulting from the commencement of the Chapter 11 Cases, there shall not have occurred a material
adverse change (x) in the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise),
or results of operations of the Borrower and its Subsidiaries taken as a whole, since December 31, 2018 or (y) in the material
facts and information regarding such entities as represented to date by such entities to the Administrative Agent or Lenders.


 




    	 	27	 



     


    

  


(h)          The
Administrative Agent shall have received evidence of all governmental, equity holder and third party consents and approvals necessary
in connection with the contemplated financing and all applicable waiting periods shall have expired without any action being taken
by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower
and its Subsidiaries, taken as a whole, and no law or regulation shall be applicable which in the reasonable judgment of the Administrative
Agent or Required Lenders could have such effect.


 


(i)           Except
as set forth in Schedule 4.1(i), no action, suit, investigation or proceeding is pending or, to the knowledge of any officer
of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to
result in a Material Adverse Effect or which seeks to prevent, enjoin or delay the making of any Credit Extensions.


 


(j)           [Intentionally
omitted.]


 


(k)          The
Administrative Agent shall have received evidence of current insurance coverage in form, scope and substance reasonably satisfactory
to the Administrative Agent and Required Lenders and otherwise in compliance with the terms of Sections 5.18 and 6.6.


 


(l)           The
Administrative Agent shall have received the results of a recent lien search in each of the jurisdictions where the initial Loan
Parties are organized, and such search shall reveal no Liens on any of the assets of the initial Loan Parties except for (i) the
M3 Purported Liens, (ii) Liens permitted by Section 6.16, or (iii) Liens to be discharged on or prior to the Effective Date pursuant
to a payoff letter or other documentation satisfactory to the Administrative Agent and Required Lenders.


 


(m)         Each
document (including any Uniform Commercial Code financing statement) required by the Collateral Documents or under law or reasonably
requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent,
for the benefit of the Lenders, a perfected Lien on the Collateral described herein, prior and superior in right to any other Person
(other than with respect to Liens expressly permitted by Section 6.16), shall be in proper form for filing, registration or recordation.


 


(n)          The
Administrative Agent and the Lenders shall have received and reviewed all material so-called “first day” motions, declarations,
and other pleadings to be filed in the Chapter 11 Cases, including the Sale Motion, each of which shall be in form and substance
reasonably satisfactory to the Borrower, the Administrative Agent and the Required Lenders;


 


(o)          The
Administrative Agent and the Lenders shall have received and reviewed the Approved Budget, which shall be in form and substance
satisfactory to the Administrative Agent and the Required Lenders, which shall be attached to the DIP Orders.


 




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(p)          All
motions and other documents to be filed with and submitted to the Bankruptcy Court in connection with the DIP Orders shall be,
prior to such filing and submittal, (x) received by the Administrative Agent and the Required Lenders reasonably in advance of
filing and (y) in form and substance satisfactory to the Borrower, the Administrative Agent and the Required Lenders. The Interim
Borrowing Order shall have been entered, shall be in full force and effect, and neither shall have been reversed, vacated or stayed,
or modified without the prior written consent of the Borrower, the Administrative Agent and the Required Lenders, and all other
necessary consents and approvals to the transactions contemplated hereby shall have been obtained and shall be satisfactory to
the Administrative Agent and Required Lenders.


 


(q)          The
Bankruptcy Court shall have entered the DIP Orders granting the Administrative Agent and the Lenders under the Pre-Petition Credit
Agreement adequate protection of their interests, which orders shall be in form and substance acceptable to the Borrower, the Administrative
Agent and the Required Lenders.


 


4.2.         Each
Credit Extension. The Lenders shall not be required to make any Credit Extension unless on the applicable Borrowing
Date:


 


(a)          There
exists no Default or Event of Default, nor would a Default or Event of Default result from such Credit Extension.


 


(b)          The
representations and warranties contained in Article V are (x) with respect to any representations or warranties that contain a
materiality qualifier, true and correct in all respects as of such Borrowing Date, except to the extent any such representation
or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and
correct in all respects on and as of such earlier date and (y) with respect to any representations or warranties that do not contain
a materiality qualifier, true and correct in all material respects as of such Borrowing Date, except to the extent any such representation
or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and
correct in all material respects on and as of such earlier date.


 


Each Borrowing Notice shall
constitute a representation and warranty by the Borrower that the conditions contained in Sections 4.2(a) and (b) have been satisfied.


 


ARTICLE
V


 


REPRESENTATIONS
AND WARRANTIES


 


The Borrower represents
and warrants to the Lenders that:


 


5.1.         Existence
and Standing. Each of the Borrower and its Subsidiaries is a corporation, partnership (in the case of Subsidiaries only)
or limited liability company duly and properly incorporated or formed, as the case may be, validly existing and (to the extent
such concept applies to such entity) in good standing under the laws of its jurisdiction of incorporation or organization and has
all requisite authority to conduct its business in each jurisdiction in which its business is conducted.


 


5.2.         Authorization
and Validity. The Borrower has the power and authority and legal right to execute and deliver the Loan Documents to
which it is a party and to perform its obligations thereunder. The execution and delivery by the Borrower of the Loan Documents
to which it is a party and the performance of its obligations thereunder have been duly authorized by proper corporate proceedings,
and the Loan Documents to which the Borrower is a party constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors’ rights generally.


 




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5.3.         No
Conflict; Government Consent. Neither the execution and delivery by the Borrower of the Loan Documents to which it is
a party, nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof will violate
(i) any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Borrower or any of its Subsidiaries
or (ii) the Borrower’s or any Subsidiary’s articles or certificate of incorporation, partnership agreement, certificate
of partnership, articles or certificate of organization, by-laws, or operating or other management agreement, as the case may be,
or (iii) the provisions of any indenture, instrument or agreement to which the Borrower or any of its Subsidiaries is a party or
is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in, or require,
the creation or imposition of any Lien in, of or on the Property of the Borrower or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, adjudication, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, or other action in respect of any governmental or public body or authority, or
any subdivision thereof, which has not been obtained by the Borrower or any of its Subsidiaries, is required to be obtained by
the Borrower or any of its Subsidiaries in connection with the execution and delivery of the Loan Documents, the borrowings under
this Agreement, the payment and performance by the Borrower of the Obligations or the legality, validity, binding effect or enforceability
of any of the Loan Documents.


 


5.4.         Financial
Statements. The December 31, 2018 audited consolidated financial statements of the Borrower and its Subsidiaries heretofore
delivered to the Lenders were prepared in accordance with GAAP in effect on the date such statements were prepared and fairly present
in all material respects the consolidated financial condition and operations of the Borrower and its Subsidiaries at such date
and the consolidated results of their operations for the period then ended.


 


5.5.         Material
Adverse Change. Since the date of the most recent audited financial statements delivered to the Administrative Agent,
there has been no change in the business, Property, condition (financial or otherwise) or results of operations of the Borrower
and its Subsidiaries which could reasonably be expected to have a Material Adverse Effect.


 


5.6.         Taxes.
The Borrower and its Subsidiaries have filed all United States federal and state income Tax returns and all other material Tax
returns which are required to be filed by them and have paid all United States federal and state income Taxes and all other material
Taxes due from the Borrower and its Subsidiaries, including, without limitation, pursuant to any assessment received by the Borrower
or any of its Subsidiaries, except such Taxes, if any, as are being contested in good faith and as to which adequate reserves have
been provided in accordance with GAAP and as to which no Lien exists. No Tax Liens have been filed and no claims are being asserted
with respect to any such Taxes. The charges, accruals and reserves on the books of the Borrower and its Subsidiaries in respect
of any Taxes or other governmental charges are adequate.


 




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5.7.         Litigation
and Contingent Obligations. There is no litigation, arbitration, governmental investigation, proceeding or inquiry pending
or, to the knowledge of any of their officers, threatened against or affecting the Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect or which seeks to prevent, enjoin or delay the making of any Credit Extensions.
Other than any liability incident to any litigation, arbitration or proceeding which could not reasonably be expected to have a
Material Adverse Effect, the Borrower has no material Contingent Obligations not provided for or disclosed in the financial statements
referred to in Section 5.4.


 


5.8.         Subsidiaries.
Schedule 5.8 contains an accurate list of all Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their respective capital stock or other ownership interests
owned by the Borrower or other Subsidiaries. All of the issued and outstanding shares of capital stock or other ownership interests
of such Subsidiaries have been (to the extent such concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.


 


5.9.         ERISA.
With respect to each Plan, the Borrower and all ERISA Affiliates have paid all required minimum contributions and installments
on or before the due dates provided under Section 43 0(j) of the Code and could not reasonably be subject to a lien under Section
430(k) of the Code or Title IV of ERISA. Neither the Borrower nor any ERISA Affiliate has filed, pursuant to Section 412(c) of
the Code or Section 302(c) of ERISA, an application for a waiver of the minimum funding standard. No ERISA Event has occurred or
is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected
to occur, could reasonably be expected to result in a Material Adverse Effect.


 


5.10.       Accuracy
of Information. No information, exhibit or report furnished by the Borrower or any of its Subsidiaries to the Administrative
Agent or to any Lender in connection with the negotiation of, or compliance with, the Loan Documents contained any material misstatement
of fact or omitted to state a material fact or any fact necessary to make the statements contained therein not misleading.


 


5.11.       Regulation
U. Margin stock (as defined in Regulation U) constitutes less than 25% of the value of those assets of the Borrower
and its Subsidiaries which are subject to any limitation on sale, pledge, or other restriction hereunder.


 


5.12.       Material
Agreements. Neither the Borrower nor any Subsidiary is a party to any agreement or instrument or subject to any charter
or other corporate or limited liability company restriction which could reasonably be expected to have a Material Adverse Effect.
Neither the Borrower nor any Subsidiary is in default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in (i) any agreement to which it is a party, which default could reasonably be expected to have
a Material Adverse Effect or (ii) any agreement or instrument evidencing or governing Indebtedness.


 




    	 	31	 



     


    

 


5.13.       Compliance
With Laws. The Borrower and its Subsidiaries are in compliance in all material respects with all applicable statutes,
rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership of their respective Property.


 


5.14.       Ownership
of Properties. Except as set forth in Schedule 5.14, on the date of this Agreement, the Borrower and its Subsidiaries
will have good title, free of all Liens other than those permitted by Section 6.16, to all of the Property and assets reflected
in the Borrower’s most recent consolidated financial statements provided to the Administrative Agent as owned by the Borrower
and its Subsidiaries (other than as may have been disposed of in a manner permitted by Section 6.13(a)).


 


5.15.       Plan
Assets; Prohibited Transactions. The Borrower is not an entity deemed to hold “plan assets” within the meaning
of 29 C.F.R. § 2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA) which is subject to Title I of
ERISA or any plan (within the meaning of Section 4975 of the Code), and neither the execution of this Agreement nor the making
of Credit Extensions hereunder gives rise to a prohibited transaction within the meaning of Section 406 of ERISA or Section 4975
of the Code.


 


5.16.       Environmental
Matters. In the ordinary course of its business, the officers of the Borrower consider the effect of Environmental Laws
on the business of the Borrower and its Subsidiaries, in the course of which they identify and evaluate potential risks and liabilities
accruing to the Borrower due to Environmental Laws. On the basis of this consideration, the Borrower has concluded its Property
and operations and those of its Subsidiaries are in material compliance with applicable Environmental Laws and that none of Borrower
or any of its Subsidiaries is subject to any liability under Environmental Laws that individually or in the aggregate could reasonably
be expected to have a Material Adverse Effect. Neither the Borrower nor any Subsidiary has received any notice to the effect that
its Property and/or operations are not in material compliance with any of the requirements of applicable Environmental Laws or
are the subject of any federal or state investigation evaluating whether any remedial action is needed to respond to a release
of any Hazardous Material, which non-compliance or remedial action could reasonably be expected to have a Material Adverse Effect.


 


5.17.       Investment
Company Act. Neither the Borrower nor any Subsidiary is an “investment company” or a company “controlled”
by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.


 


5.18.       Insurance.
The Borrower maintains, and has caused each Subsidiary to maintain, with financially sound and reputable insurance companies insurance
on all their Property, liability insurance and environmental insurance in such amounts, subject to such deductibles and self-insurance
retentions and covering such Properties and risks as is consistent with sound business practice.


 


5.19.       No
Default. No Default or Event of Default has occurred and is continuing.


 


5.20.       Anti-Corruption
Laws: Sanctions: Anti-Terrorism Laws.


 




    	 	32	 



     


    

 


(a)          The
Borrower, its Subsidiaries and their respective officers and employees and, to the knowledge of the Borrower, its directors and
agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of the Borrower, any
Subsidiary or, to the knowledge of the Borrower or such Subsidiary, any of their respective directors, officers or employees is
a Sanctioned Person. No Loan, use of the proceeds of any Loan or other transactions contemplated hereby will violate Anti-Corruption
Laws or applicable Sanctions.


 


(b)          Neither
the making of the Loans hereunder nor the use of the proceeds thereof will violate the PATRIOT Act, the Trading with the Enemy
Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or successor statute thereto. The Borrower
and its Subsidiaries are in compliance in all material respects with the PATRIOT Act.


 


ARTICLE
VI


 


COVENANTS


 


During the term of this
Agreement, unless the Required Lenders shall otherwise consent in writing:


 


6.1.         Financial
Reporting. The Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered
in accordance with GAAP, and furnish to the Administrative Agent and the Lenders:


 


(a)          Within
120 days after the close of each of its fiscal years, an audit report certified by independent certified public accountants acceptable
to the Administrative Agent, prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including
balance sheets as of the end of such period, related profit and loss and reconciliation of surplus statements, and a statement
of cash flows, setting forth in each case in comparative form the figures for the previous fiscal year, and subject only to a going
concern qualification.


 


(b)          Within
45 days after each of its fiscal quarters, for itself and its Subsidiaries, consolidated unaudited balance sheets as at the close
of each such period and consolidated profit and loss and reconciliation of surplus statements (including sufficient detail for
independent calculation of the financial covenants set forth in Section 6.21) and a statement of cash flows for the period from
the beginning of such fiscal year to the end of such quarter, setting forth in each case in comparative form the figures from the
corresponding fiscal quarter of the previous fiscal year, all certified by its chief financial officer.


 


(c)          As
soon as available, but in any event within 30 days after the end of each month, an inventory report and an accounts receivable
aging report, each in form and content acceptable to Administrative Agent.


 


(d)          Together
with the financial statements required under Sections 6.1(b) and (j), a compliance certificate in substantially the form of Exhibit
A signed by its chief financial officer showing the calculations necessary to determine compliance with Section 6.21 of this
Agreement and stating that no Default or Event of Default exists, or if any Default or Event of Default exists, stating the nature
and status thereof and accompanied by a report and analysis of management of Borrower of the financial results for the period covered
thereby.


 




    	 	33	 



     


    

 


(e)          Promptly
upon the furnishing thereof to the shareholders of the Borrower, copies of all financial statements, reports and proxy statements
so furnished.


 


(f)           Promptly
upon the filing thereof, copies of all registration statements and annual, quarterly, monthly or other regular reports which the
Borrower or any of its Subsidiaries files with the U.S. Securities and Exchange Commission.


 


(g)          Such
other information (including non-financial information and environmental reports) as the Administrative Agent or any Lender may
from time to time reasonably request.


 


(h)          Any
financial statement and other items required to be furnished pursuant to Section 6.1(a), Section 6.1(b), Section 6.1(e) or Section
6.1(f) shall be deemed to have been furnished on the date on which the Lenders receive notice that the Borrower has filed such
financial statement with the U.S. Securities and Exchange Commission and is available on the EDGAR website on the Internet at www.sec.gov
or any successor government website that is freely and readily available to the Administrative Agent and the Lenders without charge;
provided that the Borrower shall give notice of any such filing to the Administrative Agent (who shall then give notice of any
such filing to the Lenders). Notwithstanding the foregoing, the Borrower shall deliver paper or electronic copies of any such financial
statement to the Administrative Agent if the Administrative Agent reasonably requests the Borrower to furnish such paper or electronic
copies until written notice to cease delivering such paper or electronic copies is given by the Administrative Agent.


 


(i)           On
or before each of the 1st and 15th day of each month, Borrower shall provide to Administrative Agent and Lenders an updated proposed
budget and if Administrative Agent and Lenders in their sole discretion shall approve such updated proposed budget, it shall replace
and supersede the then existing Approved Budget. The Administrative Agent and Lenders shall notify Borrower whether such updated
proposed budget is acceptable no later than five (5) Business Days after receipt thereof; provided that if no such notice
is provided, then the Approved Budget most recently in effect shall remain in effect until the Administrative Agent and the Lenders
notify Borrower as to their acceptance of the proposed budget. On or before the third Business Day of each week, Borrower shall
provide to Administrative Agent (A) a Variance Report for such week and (B) a certification by the Interim Chief Strategy Officer,
that such person has no reason to believe that such Variance Report is incorrect or misleading in any material respect. On or before
the second Business Day of each week, Borrower shall provide to Administrative Agent (A) a schedule of professional fees billed
since inception and a schedule of professional fees paid since inception and (B) a report on the prior weekly sales by customer,
together with a comparison to budgeted sales for such period and a certification by the Interim Chief Strategy Officer that such
person has no reason to believe that such comparison is incorrect or misleading in any material respect.


 


(j)           Within
30 days after the last day of each calendar month, for itself and its Subsidiaries, consolidated unaudited balance sheets as at
the close of each such period and consolidated profit and loss and reconciliation of surplus statements (including sufficient detail
for independent calculation of the financial covenants set forth in Section 6.21), and a statement of cash flows for the period
from the beginning of such fiscal year to the end of such month, setting forth in each case in comparative form the figures from
the corresponding month of the previous fiscal year, all certified by its chief financial officer.


 




    	 	34	 



     


    

  


If any information which
is required to be furnished to the Lenders under this Section 6.1 is required by law or regulation to be filed by the Borrower
with a government body on an earlier date, then the information required hereunder shall be furnished to the Lenders at such earlier
date.


 


6.2.         Use
of Proceeds. The Borrower will, and will cause each Subsidiary to, use the proceeds of the Credit Extensions for domestic
working capital purposes. The Borrower will not, nor will it permit any Subsidiary to, use any of the proceeds of the Advances
to purchase or carry any “margin stock” (as defined in Regulation U). No Borrower will request any Loan, and no Borrower
shall use, and the Borrower shall ensure that its Subsidiaries and its or their respective directors, officers, employees and agents
shall not use, the proceeds of any Loan (i) in furtherance of an offer, payment, promise to pay, or authorization of the payment
or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (ii) in any manner that
would result in the violation of any applicable Sanctions, or (iii) in any manner that would cause the Loan to be deemed a “liquidity
facility” as such term is used in 12 C.F.R. Part 50.


 


6.3.         Notice
of Material Events. The Borrower will, and will cause each Subsidiary to, give notice in writing to the Administrative
Agent and each Lender, promptly and in any event within seven (7) days after an officer of the Borrower obtains knowledge thereof,
of the occurrence of any of the following:


 


(a)          any
Default or Event of Default;


 


(b)          the
filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority (including pursuant
to any applicable Environmental Laws) against or affecting the Borrower or any Affiliate thereof;


 


(c)          with
respect to a Plan, (i) any failure to pay all required minimum contributions and installments on or before the due dates provided
under Section 430(j) of the Code or (ii) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA, of an application
for a waiver of the minimum funding standard;


 


(d)          the
occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, would reasonably be expected
to result in a Material Adverse Effect;


 


(e)          any
material change in accounting policies of, or financial reporting practices by, the Borrower or any Subsidiary;


 


(f)           the
material loss of any customer or supplier; and


 


(g)          any
other development, financial or otherwise, which would reasonably be expected to have a Material Adverse Effect.


 




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Each notice delivered under
this Section 6.3 shall be accompanied by a statement of an officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.


 


6.4.         Conduct
of Business. Subject to applicable provisions of the Bankruptcy Code and orders of the Bankruptcy Court, the Borrower
will, and will cause each Subsidiary to, carry on and conduct its business in substantially the same manner and in substantially
the same fields of enterprise as it is presently conducted and do all things necessary to remain duly incorporated or organized,
validly existing and (to the extent such concept applies to such entity) in good standing as a domestic corporation, partnership
or limited liability company in its jurisdiction of incorporation or organization, as the case may be, and maintain all requisite
authority to conduct its business in each jurisdiction in which its business is conducted.


 


6.5.         Taxes.
Subject to applicable provisions of the Bankruptcy Code and orders of the Bankruptcy Court, the Borrower will, and will cause each
Subsidiary to, timely file complete and correct United States federal and applicable foreign, state and local tax returns required
by law and pay when due all taxes, assessments and governmental charges and levies upon it or its income, profits or Property,
except those which are being contested in good faith by appropriate proceedings, with respect to which adequate reserves have been
set aside in accordance with GAAP and which could not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect.


 


6.6.         Insurance.
The Borrower will, and will cause each Subsidiary to, maintain with financially sound and reputable insurance companies insurance
on all their Property, liability insurance and environmental insurance in such amounts, subject to such deductibles and self-insurance
retentions and covering such Properties and risks as is consistent with sound business practice, and the Borrower will furnish
to any Lender upon request full information as to the insurance carried. The Administrative Agent shall be named as lender loss
payee pursuant to a standard mortgagee provision acceptable to the Administrative Agent and/or additional insured with respect
to any such insurance providing coverage in respect of any Collateral, and each provider of any such insurance shall agree, by
endorsement upon the policy or policies issued by it or by independent instruments furnished to the Administrative Agent, that
it will give or endeavor to give the Administrative Agent thirty (30) days prior written notices before any such policy or policies
shall be cancelled. The Borrower shall notify the Administrative Agent in writing, promptly after any Authorized Officer’s
awareness thereof, if (i) any such policy or policies shall be materially altered in a manner adverse to the Administrative Agent
and/or the Lenders or (ii) the amount of coverage thereunder shall be reduced.


 


6.7.         Compliance
with Laws and Material Contractual Obligations. Subject to applicable provisions of the Bankruptcy Code and orders of
the Bankruptcy Court, the Borrower will, and will cause each Subsidiary to, (i) comply in all material respects with all laws,
rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject including, without limitation,
all Environmental Laws, Anti-Corruption Laws and applicable Sanctions and (ii) perform in all material respects its obligations
under material agreements to which it is a party.


 




    	 	36	 



     


    

  


6.8.         Maintenance
of Properties. Subject to applicable provisions of the Bankruptcy Code and orders of the Bankruptcy Court, the Borrower
will, and will cause each Subsidiary to, do all things necessary to maintain, preserve, protect and keep its Property in good repair,
working order and condition, ordinary wear and tear excepted, and make all necessary and proper repairs, renewals and replacements
so that its business carried on in connection therewith may be properly conducted at all times.


 


6.9.         Books
and Records; Inspection. The Borrower will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities.
The Borrower will, and will cause each Subsidiary to, permit the Administrative Agent and the Lenders, by their respective representatives
and agents, at the Borrower’s expense, with reasonable advance notice during normal business hours, to inspect any of the
Property, books and financial records of the Borrower and each Subsidiary, to examine and make copies of the books of accounts
and other financial records of the Borrower and each Subsidiary, and to discuss the affairs, finances and accounts of the Borrower
and each Subsidiary with, and to be advised as to the same by, their respective officers at such reasonable times and intervals
as the Administrative Agent or any Lender may reasonably designate.


 


6.10.       Payment
of Obligations. Subject to applicable provisions of the Bankruptcy Code and orders of the Bankruptcy Court, the Borrower
will, and will cause each of its Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, would reasonably
be expected to result in a Material Adverse Effect before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate proceedings, and (b)the Borrower or such Subsidiary
has set aside on its books adequate reserves with respect thereto in accordance with GAAP.


 


6.11.       Indebtedness.
The Borrower will not, nor will it permit any Subsidiary to, create, incur or suffer to exist any Indebtedness, except:


 


(a)          The
Loans.


 


(b)          Indebtedness
existing on the date hereof and described in Schedule 6.11 and any renewal or extension of such Indebtedness that does not
increase the principal amount thereof.


 


(c)          Indebtedness
secured by purchase money liens permitted under Section 6.16(h) in an outstanding principal amount not to exceed $500,000 at any
time.


 


6.12.       Merger.
The Borrower will not, nor will it permit any Subsidiary to, merge or consolidate with or into any other Person, or permit any
other Person to merge into or consolidate with it, or liquidate or dissolve, except that (i) a Subsidiary may merge, consolidate,
liquidate or dissolve into the Borrower or a Guarantor (with the Borrower or a Guarantor being the survivor thereof, and with the
Borrower being the survivor of any merger with any Guarantor or Subsidiary) and (ii) a non-Guarantor Subsidiary may merge, consolidate,
liquidate or dissolve into another non-Guarantor Subsidiary.


 




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6.13.       Sale
of Assets. The Borrower will not, nor will it permit any Subsidiary to, lease, sell or otherwise dispose of its Property
to any other Person, except:


 


(a)          The
sale of the business and assets of the Borrower and its Subsidiaries as contemplated by the Sale Motion.


 


(b)          Sales
of inventory, or used, worn-out or surplus equipment, all in the ordinary course of business, provided that aggregate disposition
consideration for all such equipment (but not inventory) shall not exceed $500,000 during the term of this Agreement.


 


(c)          The
sale of equipment to the extent that such equipment is exchanged for credit against the purchase price of similar replacement equipment,
or the proceeds of such sale are applied with reasonable promptness to the purchase price of such replacement equipment.


 


(d)          Sales
or other dispositions of its Property that, together with all other Property of the Borrower and its Subsidiaries previously sold
or disposed of (other than inventory in the ordinary course of business) as permitted by this Section 6.13(c) does not exceed $500,000
in aggregate disposition consideration during the term of this Agreement.


 


6.14.       Investments.
The Borrower will not, nor will it permit any Subsidiary to, make or suffer to exist any Investments (including without limitation,
loans and advances to, and other Investments in, Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, except:


 


(a)          Cash
Equivalent Investments.


 


(b)          Existing
Investments in Subsidiaries and other Investments in existence on the date hereof and described in Schedule 6.14.


 


(c)          Travel
advances to management personnel and employees in the ordinary course of business.


 


6.15.       Acquisitions.
The Borrower will not, nor will it permit any Subsidiary, to make any Acquisition.


 


6.16.       Liens.
The Borrower will not, nor will it permit any Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the Property
of the Borrower or any of its Subsidiaries, except:


 


(a)          Liens
for taxes, assessments or governmental charges or levies on its Property if the same shall not at the time be delinquent or thereafter
can be paid without penalty, or are being contested in good faith and by appropriate proceedings and for which adequate reserves
in accordance with GAAP shall have been set aside on its books.


 


(b)          Liens
imposed by law, such as carriers’, warehousemen’s and mechanics’ liens and other similar liens arising in the
ordinary course of business which secure payment of obligations not more than 60 days past due or which are being contested in
good faith by appropriate proceedings and for which adequate reserves in accordance with GAAP shall have been set aside on its
books.


 




    	 	38	 



     


    

  


(c)          Liens
arising out of pledges or deposits under worker’s compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation.


 


(d)          Utility
easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing
with respect to Properties of a similar character and which do not in any material way affect the marketability of the same or
interfere with the use thereof in the business of the Borrower or its Subsidiaries.


 


(e)          Liens
arising solely by virtue of any statutory or common law provision relating to bankers’ liens, rights of set-off or similar
rights and remedies as to deposit accounts, securities accounts or other funds maintained with a creditor depository institution;
provided that (i) such account is not a dedicated cash collateral account and is not subject to restriction against access by Borrower
or a Subsidiary in excess of those set forth by regulations promulgated by the Board of Governors of the Federal Reserve, and (ii)
such account is not intended by the Borrower or any Subsidiary to provide collateral to the depository institution.


 


(f)           Liens
existing on the date hereof and described in Schedule 6.16.


 


(g)          Liens
in favor of the Administrative Agent, for the benefit of the Lenders, granted pursuant to any Collateral Document.


 


(h)          Other
Liens constituting purchase money liens securing Indebtedness permitted under Section 6.11(c), provided that the aggregate
principal amount of Indebtedness secured by such Liens described in this clause (h) at any time does not exceed $500,000 at any
time outstanding.


 


6.17.       Affiliates.
The Borrower will not, and will not permit any Subsidiary to, enter into any transaction (including, without limitation, the purchase
or sale of any Property or service) with, or make any payment or transfer to, any Affiliate except in the ordinary course of business
and pursuant to the reasonable requirements of the Borrower’s or such Subsidiary’s business and upon fair and reasonable
terms no less favorable to the Borrower or such Subsidiary than the Borrower or such Subsidiary would obtain in a comparable arms-length
transaction.


 


6.18.       Sale
and Leaseback Transactions. Other than the Mexico Transaction, the Borrower will not, nor will it permit any Subsidiary
to, enter into or suffer to exist any Sale and Leaseback Transactions.


 


6.19.       Financial
Contracts. The Borrower will not, nor will it permit any Subsidiary to, enter into or remain liable upon any Financial
Contract.


 


6.20.       Restricted
Payments. The Borrower will not, nor will it permit any Subsidiary to, make any Restricted Payment, except that any
Subsidiary may declare and pay dividends or make distributions to the Borrower or to a Wholly-Owned Subsidiary.


 




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6.21.       [Intentionally
omitted.]


 


6.22.       Further
Assurances.


 


(a)          As
promptly as possible but in any event within thirty (30) days (or such later date as may be agreed by the Administrative Agent
in its sole discretion) after a Subsidiary is organized or acquired, or any Person becomes a Subsidiary pursuant to the definition
thereof, or is designated by the Borrower or the Administrative Agent as a Subsidiary, the Borrower shall provide the Administrative
Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Subsidiary
and shall cause each such Subsidiary to deliver to the Administrative Agent a joinder to the Guaranty and the Security Agreement
(in each case in the form contemplated thereby) pursuant to which such Subsidiary agrees to be bound by the terms and provisions
thereof, such Guaranty and Security Agreement joinder(s) to be accompanied by an updated Schedule 5.8 hereto designating such Subsidiary
as such, appropriate resolutions, other documentation and legal opinions, in each case in form and substance reasonably satisfactory
to the Administrative Agent and its counsel, and such other documentation as the Administrative Agent may reasonably request. Without
limiting the foregoing, each Loan Party will, and will cause each Subsidiary to, execute and deliver, or cause to be executed and
delivered, to the Administrative Agent such documents, agreements and instruments (including, without limitation, account control
agreements, landlord waivers, bailee agreements, intellectual property security agreements and Mortgages), and will take or cause
to be taken such further actions (including the filing and recording of financing statements, fixture filings, Mortgages, deeds
of trust and other documents and such other actions or deliveries of the type required by Article IV, as applicable), which may
be required by law or which the Administrative Agent may, from time to time, reasonably request to carry out the terms and conditions
of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended to be created
by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense
of the Loan Parties.


 


(b)          As
promptly as possible but in any event within thirty (30) days (or such later date as may be agreed by the Administrative Agent
in its sole discretion) after the Borrower or any Domestic Subsidiary organizes a Foreign Subsidiary or acquires any equity interest
in a Foreign Subsidiary, or any Person becomes a Foreign Subsidiary of the Borrower or any Domestic Subsidiary pursuant to the
definition thereof, or is designated by the Borrower, any Domestic Subsidiary or the Administrative Agent as a Foreign Subsidiary,
the Borrower or the applicable Domestic Subsidiary will execute and deliver to the Administrative Agent a pledge agreement in a
form satisfactory to the Administrative Agent, together with such supporting documentation (including, without limitation, authorizing
resolutions and opinions of counsel) as the Administrative Agent may request in order to create a perfected, first-priority security
interest in the equity interests in such Foreign Subsidiary, provided that such pledges shall not exceed the Applicable Pledge
Percentage of the equity interests of such Foreign Subsidiary.


 


6.23.       OFAC,
PATRIOT Act Compliance. The Borrower shall, and shall cause each Subsidiary to, (i) refrain from doing business in a
Sanctioned Country or with a Sanctioned Person in violation of the economic sanctions of the United States administered by OF AC,
and (ii) provide, to the extent commercially reasonable, such information and take such actions as are reasonably requested by
the Administrative Agent or any Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance with
the PATRIOT Act.


 




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6.24.       Bankruptcy
Related Covenants.


 


(a)          On or prior
to April 1, 2019, the Borrower shall have filed a motion to approve this Agreement and the revolving credit facility as provided
herein. On or prior to April 4, 2019, the hearing on the Interim Borrowing Order shall be held by the Bankruptcy Court.


 


(b)          The Borrower
may not, without the prior written consent of the Administrative Agent and the Required Lenders, assume, assume and assign, or
reject executory contracts or unexpired leases except as provided in the Sale Motion.


 


(c)          On or prior
to April 1, 2019, the Borrower shall have filed the Sale Motion in the Chapter 11 Cases. Incidental to the filing of such Sale
Motion:


 


(i)          On
or prior to May 5, 2019, the Borrower shall have obtained approval of the bid procedures from the Bankruptcy Court (satisfactory
to the Borrower, the Administrative Agent and the Required Lenders) approving bid procedures for the sale of the Borrower’s
assets and the assumption and assignment of the Borrower’s executory contracts and unexpired leases.


 


(ii)         After
June 5, 2019 and on or prior to June 10, 2019, an auction among qualified bidders shall be conducted with the highest and best
bid or combination of bids being selected by the Borrower, in consultation with the Administrative Agent.


 


(iii)        On
or prior to June 12, 2019, the Bankruptcy Court shall have conducted a sale hearing with respect to such sale and the Borrower
shall have obtained an order of the Bankruptcy Court approving the Sale Motion. The Borrower shall consummate the sale of the assets
described therein on or prior to August 16, 2019. Unless the Administrative Agent and the Required Lenders otherwise agree, the
sale shall be for cash or other proceeds sufficient to pay in full of the Obligations and the outstanding Pre-Petition Liabilities
and the proceeds shall be so utilized without further order of the Bankruptcy Court.


 


(iv)        The
Borrower shall have retained as of the Petition Date, and continue to retain during the Chapter 11 Cases, (i) the Interim Chief
Strategy Officer and (ii) the Investment Banker, in each case on terms and conditions acceptable to the Borrower, the Administrative
Agent and the Required Lenders in their sole and absolute discretion; provided that each of the Administrative Agent and the Required
Lenders acknowledges that the arrangements in place with the Interim Chief Strategy Officer and the Investment Banker Advisor as
of the date of this Agreement are satisfactory to the Administrative Agent and the Required Lenders.


 




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6.25.       Budgeted
Expenses.


 


(a)          The
Borrower and its Subsidiaries shall not pay any expenses other than those set forth in the budget approved by the Administrative
Agent and the Required Lenders prior to the Effective Date (together with any subsequent budget which the Administrative Agent
and the Required Lenders may, in their sole discretion, approve, the “Approved Budget”) to be attached to the
DIP Orders. The Borrowers and their Subsidiaries shall, in each case on a cumulative basis from and after the Petition Date, (a)
achieve cash receipts of at least 80% of those projected in the Approved Budget, and (b) not permit (i) actual aggregate expenses
incurred and disbursements made to exceed 115% of those projected in the Approved Budget, (ii) “Net Cash Flow” (as
defined in the Approved Budget) for any week in each cumulative period covered by the Approved Budget to be more than $1,100,000
less than the projected cumulative Net Cash Flow as set forth in the Approved Budget for each such period or (iii) actual expenses
incurred and disbursements made for professional fees of Case Professionals to exceed those projected in the Approved Budget by
more than 20% for any individual line item or $300,000 in the aggregate for all Case Professionals. Compliance with this Section
6.25 shall be tested as of the close of business on Wednesday of each week starting as of the week ending April 26, 2019 on a cumulative
basis from and after the Petition Date. Compliance with the foregoing shall be reflected in the Variance Report delivered pursuant
to Section 6.1(i).


 


(b)          The
Borrower will not consent to or permit to exist any of the following:


 


(i)          Any
order which authorizes the rejection or assumption of any executory contracts or unexpired leases of the Borrower without the prior
written consent of the Administrative Agent and the Required Lenders except as contemplated in the Sale Motion;


 


(ii)         Any
modification, stay, vacation or amendment to the DIP Orders to which the Administrative Agent and the Required Lenders has not
consented in writing;


 


(iii)        A
priority claim or administrative expense or unsecured claim against the Borrower (now existing or hereafter arising or any kind
or nature whatsoever, including, without limitation, any administrative expense of the kind specified in sections 105, 326, 328,
330, 331, 364(c), 503(a), 503(b), 506(c), 507(a), 507(b), 546(c), 546(d), 726 or 1114 of the Bankruptcy Code) equal or superior
to the priority claim of the Administrative Agent in respect of the Obligations or to any priority claim with respect to the Pre-Petition
Liabilities, except in each case with respect to the Professional Fee Carve Out;


 


(iv)        Any
Lien on any Collateral having a priority equal or superior to the Lien securing the Obligations, other than with respect to the
Professional Fee Carve Out and Liens securing the Pre-Petition Liabilities;


 


(v)         Any
order which authorizes the return of any of the Borrowers’ property pursuant to section 546(h) of the Bankruptcy Code;


 


(vi)        Any
order which authorizes the payment of any Indebtedness (other than the Pre-Petition Liabilities, Indebtedness reflected in the
Approved Budget, and other Indebtedness approved by the Administrative Agent and the Required Lenders, in each case incurred prior
to the Petition Date or the grant of “adequate protection” (whether payment in cash or transfer of property) with respect
to any such Indebtedness which is secured by a Lien other than as set forth in the DIP Orders); or


 




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(c)          Any
order seeking authority to take any action that is prohibited by the terms of this Agreement or the other Loan Documents or refrain
from taking any action that is required to be taken by the terms of this Agreement or any of the other Loan Documents.


 


ARTICLE
VII


 


DEFAULTS


 


The occurrence of any one
or more of the following events shall constitute an Event of Default (each, an “Event of Default”):


 


7.1.         Any
representation or warranty made or deemed made by or on behalf of the Borrower or any of its Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement (including the exhibits attached hereto), any Credit Extension,
or any certificate or information delivered in connection with this Agreement or any other Loan Document shall be materially false
on the date made or confirmed.


 


7.2.         Nonpayment
of principal or interest upon any Loan, any Commitment Fee, or any other obligation under any of the Loan Documents within two
(2) Business Days after the same becomes due (provided, such two (2) Business Day grace period shall not apply to payments due
on the Facility Termination Date).


 


7.3.         The
breach by the Borrower of any of the terms or provisions of Section 6.1(a), 6.1(b), 6.1(c), 6.1(d), 6.1(i), 6.1(j), 6.2, 6.3, 6.4,
6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.18, 6.19, 6.20, 6.21, 6.22, 6.23, 6.24 or 6.25.


 


7.4.         The
breach by the Borrower (other than a breach which constitutes an Event of Default under another Section of this Article VII) of
any of the terms or provisions of this Agreement which is not remedied within thirty (30) days after the earlier of (i) an officer
of the Borrower becoming aware of any such breach and (ii) the Administrative Agent notifying the Borrower of any such breach.


 


7.5.         Any
court, government or governmental agency shall condemn, seize or otherwise appropriate, or take custody or control of, all or any
portion of the Property of the Borrower and its Subsidiaries which, when taken together with all other Property of the Borrower
and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending
with the month in which any such action occurs, constitutes a Substantial Portion.


 


7.6.         [Intentionally
omitted.]


 




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7.7.         (a)
With respect to a Plan, the Borrower or an ERISA Affiliate is subject to a lien in excess of $2,500,000 pursuant to Section 430(k)
of the Code or Section 302(c) of ERISA or Title IV of ERISA, or (b) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result
in a Material Adverse Effect.


 


7.8.         Nonpayment
by the Borrower or any Subsidiary of any Rate Management Obligation when due or the breach by the Borrower or any Subsidiary of
any term, provision or condition contained in any Rate Management Transaction or any transaction of the type described in the definition
of “Rate Management Transactions,” whether or not any Lender or Affiliate of a Lender is a party thereto.


 


7.9.         The
occurrence of any “default”, as defined in any Loan Document (other than this Agreement) or the breach of any of the
terms or provisions of any Loan Document (other than this Agreement), which default or breach continues beyond any period of grace
therein provided.


 


7.10.       Any
Loan Document (or any material provision thereof) shall fail to remain in full force or effect or any action shall be taken to
discontinue or to assert the invalidity or unenforceability of any Loan Document (or any material provision thereof), or any Guarantor
shall fail to comply with any of the terms or provisions of any Guaranty to which it is a party and which failure continues beyond
any period of grace therein provided, or any Guarantor shall deny that it has any further liability under any Guaranty to which
it is a party, or shall give notice to such effect.


 


7.11.       Any
Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in any Collateral
purported to be covered thereby, except as permitted by the terms of any Collateral Document or the terms hereof, or any Collateral
Document shall fail to remain in full force or effect or any action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Collateral Document, or any Loan Party shall fail to comply with any of the terms or provisions of any
Collateral Document to which it is a party and which failure continues beyond any period of grace therein provided.


 


7.12.       The
occurrence of a termination of, or a material default which continues beyond any period of grace as provided under, any material
customer or supply agreement.


 


7.13.       The
entry of an order in any of the Chapter 11 Cases which stays, modifies or reverses any DIP Order or which otherwise materially
adversely affects the effectiveness of any DIP Order without the express written consent of the Administrative Agent and the Required
Lenders, or the filing of any pleading by the Borrower or any Affiliate thereof seeking the entry of such an order.


 


7.14.       Either
(i) the appointment in any of the Chapter 11 Cases of a trustee or of any examiner having expanded powers to operate all or any
part of the business of the Borrower or its Domestic Subsidiaries, or (ii) the conversion of any of the Chapter 11 Cases to a case
under chapter 7 of the Bankruptcy Code.


 




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7.15.       The
failure of the Bankruptcy Court to enter a Final Borrowing Order on or prior to May 8, 2019.


 


7.16.       The
entry of any order without the prior written consent of the Administrative Agent and the Required Lenders which provides relief
from the automatic stay otherwise imposed pursuant to section 362 of the Bankruptcy Code which permits any creditor to realize
upon, or to exercise any right or remedy with respect to, any asset of the Borrower or to terminate any license, franchise, or
similar agreement, where the exercise of such right or remedy or such realization or termination would reasonably be likely to
have a Material Adverse Effect.


 


7.17.       The
filing of any application by the Borrower without the express prior written consent of the Administrative Agent and the Required
Lenders for the approval of any super-priority claim in any of the Chapter 11 Cases which is pari passu with or senior to the priority
of the claims of the Administrative Agent and the Lenders for the Obligations or the Pre-Petition Liabilities, or there shall arise
any such super-priority claim under the Bankruptcy Code, except in each instance the Professional Fee Carve Out.


 


7.18.       The
payment or other discharge by the Borrower of any Indebtedness or any other “claim” (as defined in the Bankruptcy Code)
incurred prior to the Petition Date, except the Pre-Petition Liabilities or otherwise as expressly permitted hereunder or the payment
of which the Administrative Agent and the Required Lenders have provided their written consent.


 


7.19.       The
entry of any order in any of the Chapter 11 Cases which provides adequate protection (other than on account of Liens securing the
Pre-Petition Liabilities), or the granting by the Borrower of similar relief in favor of any one or more of their pre-petition
creditors, contrary to the terms and conditions of any DIP Order.


 


7.20.       The
failure of the Borrower (i) to comply with each and all of the terms and conditions of any DIP Order, or (ii) to materially comply
with any other order entered in any of the Chapter 11 Cases if such failure would result in a Material Adverse Effect.


 


7.21.       The
filing of any motion by the Borrower or the entry of any order in any of the Chapter 11 Cases: (i) (A) permitting working capital
or other financing (other than ordinary course trade credit or unsecured debt) for the Borrower from any Person other than the
Lenders (unless the proceeds of such financing are used to pay in full of all Pre-Petition Liabilities and all Obligations), (B)
granting a Lien on, or security interest in any of the Collateral, other than with respect to this Agreement or as otherwise permitted
herein (unless such Liens are granted in connection with a financing, the proceeds of which are applied to the payment in full
of all Pre-Petition Liabilities and all Obligations), (C) except as permitted by this Agreement, permitting the use of any of the
Collateral pursuant to section 363(c) of the Bankruptcy Code without the prior written consent of the Administrative Agent and
the Required Lenders, (D) permitting recovery from any portion of the Collateral any costs or expenses of preserving or disposing
of such Collateral under section 506(c) of the Bankruptcy Code, or (E) dismissing any of the Chapter 11 Cases or (ii) the filing
of any motion by the Borrower or any Loan Party (or by any party in interest or any Creditors’ Committee appointed in any
of the Chapter 11 Cases) seeking any of the matters specified in the foregoing clause (i) that is not dismissed or denied within
thirty (30) days of the date of the filing of such motion (or such later date agreed to in writing by the Administrative Agent).


 




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7.22.       The
filing of a motion by the Borrower seeking approval of a disclosure statement and a Plan of Reorganization, or the entry of an
order confirming a Plan of Reorganization, that does not require repayment in full in cash of all Pre-Petition Liabilities and
all Obligations on the effective date of such Plan of Reorganization or confirmation of such Plan of Reorganization is denied by
the Bankruptcy Court.


 


7.23.       (a)
The filing of any pleading by the Borrower or any Affiliate thereof challenging the validity, priority, perfection, or enforceability
of the Loan Documents (as defined in the Pre-Petition Credit Agreement), the Pre-Petition Liabilities, or any Lien granted pursuant
to the Pre-Petition Loan Documents, or (b) any Lien granted pursuant to the Pre-Petition Loan Documents is determined to be null
and void, invalid or unenforceable by the Bankruptcy Court or another court of competent jurisdiction in any action commenced or
asserted by any other party in interest in any of the Chapter 11 Cases, including, without limitation, the Creditors’ Committee.


 


ARTICLE
VIII


 


ACCELERATION.
WAIVERS. AMENDMENTS AND REMEDIES


 


8.1.         Acceleration:
Remedies. If any Event of Default occurs, the Administrative Agent may, and at the request of the Required Lenders shall,
terminate or suspend the obligations of the Lenders to make Loans hereunder or declare the Obligations under this Agreement and
the other Loan Documents to be due and payable, or both, whereupon the Obligations under this Agreement and the other Loan Documents
shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which the Borrower
hereby expressly waives.


 


(a)          If,
within thirty (30) days after acceleration of the maturity of the Obligations under this Agreement and the other Loan Documents
or termination of the obligations of the Lenders to make Loans hereunder as a result of any Event of Default and before any judgment
or decree for the payment of the Obligations due under this Agreement and the other Loan Documents shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so direct, the Administrative Agent shall, by notice to the Borrower,
rescind and annul such acceleration and/or termination.


 


(b)          Upon
the occurrence and during the continuation of any Event of Default, the Administrative Agent may, and at the request of the Required
Lenders shall, exercise all rights and remedies under the Loan Documents and enforce all other rights and remedies under applicable
law to the extent provided in the DIP Orders.


 




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8.2.         Application
of Funds. After the exercise of remedies provided for in Section 8.1, any amounts received by the Administrative Agent
on account of the Obligations shall be applied by the Administrative Agent in the following order:


 


(a)          First,
to payment of 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;


 


(b)          second,
to payment of fees, indemnities and other amounts (other than principal, interest and commitment fees) payable to the Lenders (including
fees, charges and disbursements of counsel to the respective Lenders as required by Section 9.6 and amounts payable under Article
III);


 


(c)          third,
to payment of accrued and unpaid commitment fees and interest on the Loans, ratably among the Lenders in proportion to the respective
amounts described in this Section 8.2(c) payable to them;


 


(d)          fourth,
to payment of all Obligations ratably among the Lenders;


 


(e)          last,
the balance, if any, to the Borrower or as otherwise required by law;


 


provided, however, that, notwithstanding
anything to the contrary set forth above, Excluded Swap Obligations with respect to any Guarantor shall not be paid with amounts
received from such Guarantor or its assets, but appropriate adjustments shall be made with respect to payments from other Loan
Parties to preserve the allocation to Obligations otherwise set forth above in this Section 8.2.


 


8.3.         Waivers
and Amendments. Subject to the provisions of this Section 8.3, the Required Lenders (or the Administrative Agent with
the consent in writing of the Required Lenders) and the Borrower may enter into agreements supplemental hereto for the purpose
of adding or modifying any provisions to this Agreement, the Guaranty or the Security Agreement or changing in any manner the rights
of the Lenders or the Borrower hereunder or thereunder or waiving any Default or Event of Default hereunder; provided, however,
that no such supplemental agreement shall:


 


(a)          without
the consent of each Lender directly affected thereby, extend the final maturity of any Loan or postpone any regularly scheduled
payment of principal of any Loan or forgive all or any portion of the principal amount thereof, or reduce the rate or extend the
time of payment of interest or fees thereon or increase the amount of the Commitment of such Lender hereunder.


 


(b)          without
the consent of all of the Lenders, reduce the percentage specified in the definition of Required Lenders.


 


(c)          without
the consent of all of the Lenders, amend this Section 8.3.


 


(d)          without
the consent of all of the Lenders, release all or substantially all of the Guarantors of the Obligations or, except as otherwise
provided in Section 10.16, release all or substantially all of the Collateral.


 




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No amendment of any provision
of this Agreement relating to the Administrative Agent shall be effective without the written consent of the Administrative Agent.
The Administrative Agent may waive payment of the fee required under Section 12.3(c) without obtaining the consent of any other
party to this Agreement. Notwithstanding anything to the contrary herein, the Administrative Agent may, with the consent of the
Borrower only, amend, modify or supplement this Agreement or any of the other Loan Documents to cure any ambiguity, omission, mistake,
defect or inconsistency of a technical or immaterial nature, as determined in good faith by the Administrative Agent.


 


8.4.         Preservation
of Rights. No delay or omission of the Lenders or the Administrative Agent to exercise any right under the Loan Documents
shall impair such right or be construed to be a waiver of any Event of Default or an acquiescence therein, and the making of a
Credit Extension notwithstanding the existence of an Event of Default or the inability of the Borrower to satisfy the conditions
precedent to such Credit Extension shall not constitute any waiver or acquiescence. Any single or partial exercise of any such
right shall not preclude other or further exercise thereof or the exercise of any other right, and no waiver, amendment or other
variation of the terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in writing signed by the
Lenders required pursuant to Section 8.3, and then only to the extent in such writing specifically set forth. All remedies contained
in the Loan Documents or by law afforded shall be cumulative and all shall be available to the Administrative Agent and the Lenders
until the Obligations have been paid in full.


 


ARTICLE
IX


 


GENERAL
PROVISIONS


 


9.1.         Survival
of Representations. All representations and warranties of the Borrower contained in this Agreement shall survive the
making of the Credit Extensions herein contemplated.


 


9.2.         Governmental
Regulation. Anything contained in this Agreement to the contrary notwithstanding, no Lender shall be obligated to extend
credit to the Borrower in violation of any limitation or prohibition provided by any applicable statute or regulation.


 


9.3.         Headings.
Section headings in the Loan Documents are for convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.


 


9.4.         Entire
Agreement. The Loan Documents embody the entire agreement and understanding among the Borrower, the Administrative Agent
and the Lenders and supersede all prior agreements and understandings among the Borrower, the Administrative Agent and the Lenders
relating to the subject matter thereof other than those contained in the Fee Letter which shall survive and remain in full force
and effect during the term of this Agreement.


 


9.5.         Several
Obligations: Benefits of this Agreement. The respective obligations of the Lenders hereunder are several and not joint
and no Lender shall be the partner or Administrative Agent of any other (except to the extent to which the Administrative Agent
is authorized to act as such). The failure of any Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any
Person other than the parties to this Agreement and their respective successors and assigns.


 




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9.6.         Expenses:
Indemnification.


 


(a)          The
Borrower shall reimburse the Administrative Agent and each Lender upon demand for all reasonable out-of-pocket expenses paid or
incurred by the Administrative Agent or each Lender, including, without limitation, filing and recording costs and fees, costs
of any environmental review, and consultants’ fees, travel expenses and reasonable fees, charges and disbursements of outside
counsel to the Administrative Agent and/or the allocated costs of in-house counsel incurred from time to time, in connection with
the due diligence, preparation, administration, negotiation, execution, delivery, syndication, distribution (including, without
limitation, via DebtX and any other internet service selected by the Administrative Agent), review, amendment, modification, and
administration of the Loan Documents and the preparation for, monitoring of, and participation in the Chapter 11 Cases, including
the protection or enforcement of any rights or remedies of the Administrative Agent or any Lender in the Chapter 11 Cases. The
Borrower also agrees to reimburse the Administrative Agent and the Lenders for any reasonable costs, internal charges and out-of-pocket
expenses, including, without limitation, filing and recording costs and fees, costs of any environmental review, and consultants’
fees, travel expenses and reasonable fees, charges and disbursements of outside counsel to the Administrative Agent and the Lenders
and/or the reasonable allocated costs of in-house counsel incurred from time to time, paid or incurred by the Administrative Agent
or any Lender in connection with the collection and enforcement of the Loan Documents. Expenses being reimbursed by the Borrower
under this Section 9.6(a) include, without limitation, the cost and expense of obtaining an appraisal of each parcel of real property
or interest in real property described in the relevant Collateral Documents, which appraisal shall be in conformity with the applicable
requirements of any law or any governmental rule, regulation, policy, guideline or directive (whether or not having the force of
law), or any interpretation thereof, including, without limitation, the provisions of Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended, reformed or otherwise modified from time to time, and any rules promulgated to
implement such provisions and costs and expenses incurred in connection with the Reports described in the following sentence. The
Borrower acknowledges that from time to time BDCF may prepare and may distribute to the Lenders (but shall have no obligation or
duty to prepare or to distribute to the Lenders) certain audit reports (the “Reports”) pertaining to the Borrower’s
assets for internal use by BDCF from information furnished to it by or on behalf of the Borrower, after BDCF has exercised its
rights of inspection pursuant to this Agreement.


 




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(b)          The
Borrower hereby further agrees to indemnify and hold harmless the Administrative Agent, each Lender, their respective affiliates,
and each of their directors, officers and employees, Administrative Agents and advisors against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, reasonable attorneys’ fees, charges and disbursements
and settlement costs (including, without limitation, all expenses of litigation or preparation therefor) whether or not the Administrative
Agent, any Lender or any affiliate is a party thereto) which any of them may pay or incur arising out of or relating to this Agreement,
the other Loan Documents, the transactions contemplated hereby, any actual or alleged presence or release of Hazardous Materials
on or from any Property owned or operated by Borrower or any of its Subsidiaries, any environmental liability related in any way
to Borrower or any of its Subsidiaries, or 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 Borrower or any
of its Subsidiaries, or the direct or indirect application or proposed application of the proceeds of any Credit Extension hereunder
except to the extent that they are determined in a final non- appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the party seeking indemnification. The obligations of the Borrower
under this Section 9.6 shall survive the termination of this Agreement.


 


(c)          Notwithstanding
the foregoing, the Administrative Agent and the Lenders shall not be entitled to payment of the expenses and other items set forth
in subsections (a) and (b) immediately above to the extent that such expenses and other items are otherwise paid to the Administrative
Agent, the Lenders, or their Affiliates in the form of an expense reimbursement pursuant to the order entered by the Bankruptcy
Court approving the bidding procedures in the Sale Motion.


 


9.7.         Numbers
of Documents. All statements, notices, closing documents, and requests hereunder shall be furnished to the Administrative
Agent with sufficient counterparts so that the Administrative Agent may furnish one to each of the Lenders.


 


9.8.         Accounting.
Except as provided to the contrary herein, all accounting terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with GAAP in a manner consistent with that used in preparing the financial statements referred
to in Section 5.4, except that any calculation or determination which is to be made on a consolidated basis shall be made for the
Borrower and all of its Subsidiaries, including those Subsidiaries, if any, which are unconsolidated on the Borrower’s audited
financial statements; provided, however that, notwithstanding any other provision contained herein, all terms of
an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein
shall be made without giving effect to (i) any election under Accounting Standards Codification Section 825-10-25 (or any other
Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness
or other liabilities of the Borrower or any of its Subsidiaries at “fair value”, as defined therein, or (ii) any treatment
of Indebtedness in respect of convertible debt instruments under Financial Accounting Standards Codification Subtopic 470-20 (or
any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such
Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the
full stated principal amount thereof. 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 the Borrower, the Administrative Agent 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, such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein
and the Borrower shall provide to the Administrative Agent and the Lenders reconciliation statements showing the difference in
such calculation, together with the delivery of monthly, quarterly and annual financial statements required hereunder.


 




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9.9.         Severability
of Provisions. Any provision in any Loan Document that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction
or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of all
Loan Documents are declared to be severable.


 


9.10.       Nonliability
of Lenders. The relationship between the Borrower on the one hand and the Lenders and the Administrative Agent
on the other hand shall be solely that of borrower and lender. Neither the Administrative Agent nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Administrative Agent nor any Lender undertakes any responsibility to the Borrower
to review or inform the Borrower of any matter in connection with any phase of the Borrower’s business or operations. The
Borrower agrees that neither the Administrative Agent nor any Lender shall have liability to the Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by the Borrower in connection with, arising out of, or in any way related to,
the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined in a final non-appealable judgment by a court of competent jurisdiction that such
losses resulted from the gross negligence or willful misconduct of the party from which recovery is sought. Neither the Administrative
Agent nor any Lender shall have any liability with respect to, and the Borrower hereby waives, releases and agrees not to sue for,
any special, indirect, consequential or punitive damages suffered by the Borrower in connection with, arising out of, or in any
way related to the Loan Documents or the transactions contemplated thereby.


 


9.11.       Confidentiality.
The Administrative Agent and each Lender agrees to hold any confidential information which it may receive from the Borrower in
connection with this Agreement in confidence, except for disclosure (i) to its Affiliates and to the Administrative Agent and any
other Lender and their respective Affiliates, (ii) to legal counsel, accountants, and other professional advisors to the Administrative
Agent or such Lender provided such parties have been notified of the confidential nature of such information, (iii) as provided
in Section 12.3(e), (iv) to regulatory officials, (v) to any Person as requested pursuant to or as required by law, regulation,
or legal process, (vi) to any Person in connection with any legal proceeding to which it is a party, (vii) to its direct or indirect
contractual counterparties in swap agreements or to legal counsel, accountants and other professional advisors to such counterparties
provided such parties have been notified of the confidential nature of such information, (viii) to rating agencies if requested
or required by such agencies in connection with a rating relating to the Advances hereunder, (ix) in connection with the exercise
of any remedies hereunder or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement
of rights hereunder or thereunder, and (x) to the extent such information (1) becomes publicly available other than as a result
of a breach of this Section 9.11 or (2) becomes available to the Administrative Agent or any Lender on a non-confidential basis
from a source other than the Borrower. Without limiting Section 9.4, the Borrower agrees that the terms of this Section 9.11 shall
set forth the entire agreement between the Borrower and the Administrative Agent and each Lender with respect to any confidential
information previously or hereafter received by the Administrative Agent or such Lender in connection with this Agreement, and
this Section 9.11 shall supersede any and all prior confidentiality agreements entered into by the Administrative Agent or any
Lender with respect to such confidential information. Notwithstanding the foregoing, Administrative Agent or Lenders may provide
to any of its lenders previously disclosed to Borrower, copies of all financial statements and other reports and all other notices
of default, other notices, amendments, modifications, waivers, supplements and agreements delivered under or pursuant to any Loan
Document relating to Borrower or any of its affiliates; provided, however, that prior to providing such documents and information
Administrative Agent and Lender shall cause and such lender to execute and deliver to and in favor of Borrower and the Guarantors
a written consent to which such lender shall be bound to the confidentiality and other provisions set forth in this Section 9.11.


 




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9.12.       Nonreliance.
Each Lender hereby represents that it is not relying on or looking to any margin stock (as defined in Regulation U) for the repayment
of the Credit Extensions provided for herein.


 


9.13.       Disclosure.
The Borrower and each Lender hereby acknowledge and agree that BDCF and/or its Affiliates from time to time may hold investments
in, make other loans to or have other relationships with the Borrower and its Affiliates.


 


9.14.       USA
PATRIOT ACT NOTIFICATION. The following notification is provided to Borrower pursuant to Section 326 of the PATRIOT
Act:


 


Each Lender that is subject to the requirements
of the PATRIOT Act hereby notifies the Borrower and each other Loan Party that pursuant to the requirements of the PATRIOT Act,
it is required to obtain, verify and record information that identifies such Loan Party, which information includes the name and
address of such Loan Party and other information that will allow such Lender to identify such Loan Party in accordance with the
PATRIOT Act.


 


9.15.       Relationship
with DIP Orders. In the event of any inconsistency between the terms of the DIP Orders and the Loan Documents, the terms
of the DIP Orders shall control and the representations, warranties, covenants, agreements or events of default made herein and
in the other Loan Documents shall be subject to the terms of the DIP Orders.


 


ARTICLE
X


 


THE
ADMINISTRATIVE AGENT


 


10.1.       Appointment:
Nature of Relationship. BDCF is hereby appointed by each of the Lenders as its contractual representative (herein referred
to as the “Administrative Agent”) hereunder and under each other Loan Document, and each of the Lenders irrevocably
authorizes the Administrative Agent to act as the contractual representative of such Lender with the rights and duties expressly
set forth herein and in the other Loan Documents. The Administrative Agent agrees to act as such contractual representative upon
the express conditions contained in this Article X. Notwithstanding the use of the defined term “Administrative Agent,”
it is expressly understood and agreed that the Administrative Agent shall not have any fiduciary responsibilities to any Lender
by reason of this Agreement or any other Loan Document and that the Administrative Agent is merely acting as the contractual representative
of the Lenders with only those duties as are expressly set forth in this Agreement and the other Loan Documents. In its capacity
as the Lenders’ contractual representative, the Administrative Agent (i) does not hereby assume any fiduciary duties to any
of the Lenders, and (ii) is a “representative” of the Lenders within the meaning of the term “secured party”
as defined in the New York Uniform Commercial Code, and (iii) is acting as an independent contractor, the rights and duties of
which are limited to those expressly set forth in this Agreement and the other Loan Documents. Each of the Lenders hereby agrees
to assert no claim against the Administrative Agent on any agency theory or any other theory of liability for breach of fiduciary
duty, all of which claims each Lender hereby waives.


 




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10.2.       Powers.
The Administrative Agent shall have and may exercise such powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as are reasonably incidental thereto. The Administrative
Agent shall have no implied duties to the Lenders, or any obligation to the Lenders to take any action thereunder except any action
specifically provided by the Loan Documents to be taken by the Administrative Agent.


 


10.3.       General
Immunity. Neither the Administrative Agent nor any of its directors, officers, Administrative Agents or employees shall
be liable to the Borrower, the Lenders or any Lender for any action taken or omitted to be taken by it or them hereunder or under
any other Loan Document or in connection herewith or therewith except to the extent such action or inaction is determined in a
final non-appealable judgment by a court of competent jurisdiction to have arisen from the gross negligence or willful misconduct
of such Person.


 


10.4.       No
Responsibility for Loans. Recitals, etc. Neither the Administrative Agent nor any of its directors, officers,
Administrative Agents or employees shall be responsible for or have any duty to ascertain, inquire into, or verify (a) any statement,
warranty or representation made in connection with any Loan Document or any borrowing hereunder; (b) the performance or observance
of any of the covenants or agreements of any obligor under any Loan Document, including, without limitation, any agreement by an
obligor to furnish information directly to each Lender; (c) the satisfaction of any condition specified in Article IV, except receipt
of items required to be delivered solely to the Administrative Agent; (d) the existence or possible existence of any Default or
Event of Default; (e) the validity, enforceability, effectiveness, sufficiency or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith; (f) the value, sufficiency, creation, perfection or priority of any Lien
in any collateral security; or (g) the financial condition of the Borrower or any guarantor of any of the Obligations or of any
of the Borrower’s or any such guarantor’s respective Subsidiaries.


 


10.5.       Action
on Instructions of Lenders. The Administrative Agent shall in all cases be fully protected in acting, or in refraining
from acting, hereunder and under any other Loan Document in accordance with written instructions signed by the Required Lenders,
and such instructions and any action taken or failure to act pursuant thereto shall be binding on all of the Lenders. The Lenders
hereby acknowledge that the Administrative Agent shall be under no duty to take any discretionary action permitted to be taken
by it pursuant to the provisions of this Agreement or any other Loan Document unless it shall be requested in writing to do so
by the Required Lenders. The Administrative Agent shall be fully justified in failing or refusing to take any action hereunder
and under any other Loan Document unless it shall first be indemnified to its satisfaction by the Lenders pro rata against any
and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action.


 




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10.6.       Employment
of Administrative Agents and Counsel. The Administrative Agent may execute any of its duties as Administrative Agent
hereunder and under any other Loan Document by or through employees, Administrative Agents, and attorneys-in-fact and shall not
be answerable to the Lenders, except as to money or securities received by it or its authorized Administrative Agents, for the
default or misconduct of any such Administrative Agents or attorneys-in-fact selected by it with reasonable care. The Administrative
Agent shall be entitled to advice of counsel concerning the contractual arrangement between the Administrative Agent and the Lenders
and all matters pertaining to the Administrative Agent’s duties hereunder and under any other Loan Document.


 


10.7.       Reliance
on Documents; Counsel. The Administrative Agent shall be entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex, electronic mail message, statement, paper or document believed by it to be genuine
and correct and to have been signed or sent by the proper Person or Persons, and, in respect to legal matters, upon the opinion
of counsel selected by the Administrative Agent, which counsel may be employees of the Administrative Agent. For purposes of determining
compliance with the conditions specified in Sections 4.1 and 4.2, 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 applicable date specifying its objection thereto.


 


10.8.       Administrative
Agent’s Reimbursement and Indemnification. The Lenders agree to reimburse and indemnify the Administrative Agent
ratably in proportion to their respective Pro Rata Shares (i) for any amounts not reimbursed by the Borrower for which the Administrative
Agent is entitled to reimbursement by the Borrower under the Loan Documents, (ii) for any other expenses incurred by the Administrative
Agent on behalf of the Lenders, in connection with the preparation, execution, delivery, administration and enforcement of the
Loan Documents (including, without limitation, for any expenses incurred by the Administrative Agent in connection with any dispute
between the Administrative Agent and any Lender or between two or more of the Lenders) and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the Administrative Agent in any way relating to or arising out of the Loan Documents
or any other document delivered in connection therewith or the transactions contemplated thereby (including, without limitation,
for any such amounts incurred by or asserted against the Administrative Agent in connection with any dispute between the Administrative
Agent and any Lender or between two or more of the Lenders), or the enforcement of any of the terms of the Loan Documents or of
any such other documents, provided that (i) no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Administrative Agent and (ii) any indemnification required pursuant to Section 3.2(d) shall, notwithstanding
the provisions of this Section 10.8, be paid by the relevant Lender in accordance with the provisions thereof. The obligations
of the Lenders under this Section 10.8 shall survive payment of the Obligations and termination of this Agreement.


 




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10.9.       Notice
of Event of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default hereunder unless the Administrative Agent has received written notice from a Lender or the Borrower
referring to this Agreement describing such Default or Event of Default and stating that such notice is a “notice of default”.
In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to
the Lenders; provided that, except as expressly set forth in the Loan Documents, the Administrative Agent shall not 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
Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity.


 


10.10.     Rights
as a Lender. In the event the Administrative Agent is a Lender, the Administrative Agent shall have the same rights
and powers hereunder and under any other Loan Document with respect to its Commitment and its Loans as any Lender and may exercise
the same as though it were not die Administrative Agent, and the term “Lender” or “Lenders” shall, at any
time when the Administrative Agent is a Lender, unless the context otherwise indicates, include the Administrative Agent in its
individual capacity. The Administrative Agent and its Affiliates may accept deposits from, lend money to, and generally engage
in any kind of trust, debt, equity or other transaction, in addition to those contemplated by this Agreement or any other Loan
Document, with the Borrower or any of its Subsidiaries in which the Borrower or such Subsidiary is not restricted hereby from engaging
with any other Person.


 


10.11.     Lender
Credit Decision. Legal Representation.


 


(a)          Each
Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based
on the financial statements prepared by the Borrower and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement and the other Loan Documents. Each Lender also acknowledges that
it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement
and the other Loan Documents. Except for any notice, report, document or other information expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent shall have no duty or responsibility (either initially
or on a continuing basis) to provide any Lender with any notice, report, document, credit information or other information concerning
the affairs, financial condition or business of the Borrower or any of its Affiliates that may come into the possession of the
Administrative Agent or any of its Affiliates.


 


(b)          Each
Lender further acknowledges that it has had the opportunity to be represented by legal counsel in connection with its execution
of this Agreement and the other Loan Documents, that it has made its own evaluation of all applicable laws and regulations relating
to the transactions contemplated hereby, and that the counsel to the Administrative Agent represents only the Administrative Agent
and not the Lenders in connection with this Agreement and the transactions contemplated hereby.


 




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10.12.     Successor
Administrative Agent. The Administrative Agent may resign at any time by giving written notice thereof to the Lenders
and the Borrower, and the Required Lenders may remove the Administrative Agent at any time by giving written notice to the Administrative
Agent, the Lenders and the Borrower, such resignation or removal to be effective upon the appointment of a successor Administrative
Agent or, if no successor Administrative Agent has been appointed, thirty (30) days after the notice of resignation or removal,
as applicable. Upon any such resignation or removal, the Required Lenders shall have the right to appoint, on behalf of the Borrower
and the Lenders, a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed by the Required
Lenders within fifteen (15) days after the notice of resignation or removal, then the resigning Administrative Agent may appoint,
on behalf of the Borrower and the Lenders, a successor Administrative Agent. If the Administrative Agent has resigned or been removed
and no successor Administrative Agent has been appointed, the Lenders may perform all the duties of the Administrative Agent hereunder
and the Borrower shall make all payments in respect of the Obligations to the applicable Lender and for all other purposes shall
deal directly with the Lenders. No successor Administrative Agent shall be deemed to be appointed hereunder until such successor
Administrative Agent has accepted the appointment. Upon the acceptance of any appointment as Administrative Agent hereunder by
a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning or removed Administrative Agent. Upon the effectiveness of the resignation
or removal of the Administrative Agent, the resigning or removed Administrative Agent shall be discharged from its duties and obligations
hereunder and under the Loan Documents. After the effectiveness of the resignation or removal of an Administrative Agent, the provisions
of this Article X shall continue in effect for the benefit of such Administrative Agent in respect of any actions taken or omitted
to be taken by it while it was acting as the Administrative Agent hereunder and under the other Loan Documents.


 


10.13.     Administrative
Agent Fees. The Borrower agrees to pay to the Administrative Agent the fees agreed to by the Borrower and the Administrative
Agent pursuant to any certain letter agreement between the Administrative Agent and the Borrower (the “Fee Letter”),
or as otherwise agreed from time to time.


 


10.14.     Delegation
to Affiliates. The Borrower and the Lenders agree that the Administrative Agent may delegate any of its duties under
this Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate’s directors, officers, Administrative Agents
and employees) which performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification,
waiver and other protective provisions to which the Administrative Agent is entitled under Articles IX and X.


 


10.15.     Execution
of Collateral Documents. The Lenders hereby empower and authorize the Administrative Agent to execute and deliver to
the Borrower on their behalf the Collateral Documents and all related financing statements and any financing statements, agreements,
documents or instruments as shall be necessary or appropriate to effect the purposes of the Collateral Documents.


 




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10.16.     Collateral
Releases. The Lenders hereby empower and authorize the Administrative Agent to execute and deliver to the Borrower on
their behalf any agreements, documents or instruments as shall be necessary or appropriate to effect any releases of Collateral
which shall be permitted by the terms hereof or of any other Loan Document or which shall otherwise have been approved by the Required
Lenders (or, if required by the terms of Section 8.3, all of the Lenders) in writing.


 


10.17.     Documentation
Administrative Agent. Neither any of the Lenders identified in this Agreement as a “co-Administrative Agent”
nor the Documentation Administrative Agent shall have any right, power, obligation, liability, responsibility or duty under this
Agreement other than those applicable to all Lenders as such. Without limiting the foregoing, none of such Lenders shall have or
be deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same acknowledgments with respect to such
Lenders as it makes with respect to the Administrative Agent in Section 10.11.


 


10.18.     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 that: (i) (A) the arranging and other services regarding this Agreement provided by the Lenders are arm’s-length
commercial transactions between the Borrower and its Affiliates, on the one hand, and the Lenders, on the other hand, (B) the Borrower
has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower
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) each of the Lenders 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, Administrative Agent or
fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) no Lender has any obligation to the Borrower or
any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein
and in the other Loan Documents; and (iii) each of 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 and its Affiliates, and no Lender has any obligation
to disclose any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby
waives and releases any claims that it may have against each of the Lenders with respect to any breach or alleged breach of agency
or fiduciary duty in connection with any aspect of any transaction contemplated hereby.


 


ARTICLE
XI


 


SETOFF;
RATABLE PAYMENTS


 


11.1.       Setoff.
The Borrower hereby grants each Lender a security interest in all deposits, credits and deposit accounts (including all account
balances, whether provisional or final and whether or not collected or available) of the Borrower with such Lender or any Affiliate
of such Lender (the “Deposits”) to secure the Obligations. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if any Event of Default occurs, Borrower authorizes each Lender to offset and apply all such
Deposits toward the payment of the Obligations owing to such Lender, whether or not the Obligations, or any part thereof, shall
then be due and regardless of the existence or adequacy of any collateral, guaranty or any other security, right or remedy available
to such Lender or the Lenders.


 




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11.2.       Ratable
Payments. If any Lender, whether by setoff or otherwise, has payment made to it upon its Outstanding Credit Exposure
(other than payments received pursuant to Section 3.1 or 3.2) in a greater proportion than that received by any other Lender, such
Lender agrees, promptly upon demand, to purchase a portion of the Aggregate Outstanding Credit Exposure held by the other Lenders
so that after such purchase each Lender will hold its Pro Rata Share of the Aggregate Outstanding Credit Exposure. If any Lender,
whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives collateral or other protection
for its Obligations or such amounts which may be subject to setoff, such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such collateral or other protection ratably in proportion to their respective
Pro Rata Shares of the Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made.


 


ARTICLE
XII


 


BENEFIT
OF AGREEMENT: ASSIGNMENTS; PARTICIPATIONS


 


12.1.       Successors
and Assigns. The terms and provisions of the Loan Documents shall be binding upon and inure to the benefit of the Borrower
and the Lenders and their respective successors and assigns permitted hereby, except that (i) the Borrower shall not have the right
to assign its rights or obligations under the Loan Documents without the prior written consent of each Lender, (ii) any assignment
by any Lender must be made in compliance with Section 12.3, and (iii) any transfer by participation must be made in compliance
with Section 12.2. Any attempted assignment or transfer by any party not made in compliance with this Section 12.1 shall be null
and void, unless such attempted assignment or transfer is treated as a participation in accordance with the terms of this Agreement.
The parties to this Agreement acknowledge that clause (ii) of this Section 12.1 relates only to absolute assignments and this Section
12.1 does not prohibit assignments creating security interests, including, without limitation, (x) any pledge or assignment by
any Lender of all or any portion of its rights under this Agreement and any Note to a Federal Reserve Bank or (y) in the case of
a Lender which is a Fund, any pledge or assignment of all or any portion of its rights under this Agreement and any Note to its
trustee in support of its obligations to its trustee; provided, however, that no such pledge or assignment creating
a security interest shall release the transferor Lender from its obligations hereunder unless and until the parties thereto have
complied with the provisions of Section 12.3. The Administrative Agent may treat the Person which made any Loan or which holds
any Note as the owner thereof for all purposes hereof unless and until such Person complies with Section 12.3; provided,
however, that the Administrative Agent may in its discretion (but shall not be required to) follow instructions from the
Person which made any Loan or which holds any Note to direct payments relating to such Loan or Note to another Person. Any assignee
of the rights to any Loan or any Note agrees by acceptance of such assignment to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who at the time of making such request or giving such authority
or consent is the owner of the rights to any Loan (whether or not a Note has been issued in evidence thereof), shall be conclusive
and binding on any subsequent holder or assignee of the rights to such Loan.


 




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12.2.       Participations.


 


(a)          Permitted
Participants; Effect. Any Lender may at any time sell to one or more entities (“Participants”) participating
interests in any Outstanding Credit Exposure owing to such Lender, any Note held by such Lender, any Commitment of such Lender
or any other interest of such Lender under the Loan Documents. In the event of any such sale by a Lender of participating interests
to a Participant, such Lender’s obligations under the Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations, such Lender shall remain the owner of its Outstanding
Credit Exposure and the holder of any Note issued to it in evidence thereof for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if such Lender had not sold such participating interests, and
the Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under the Loan Documents.


 


(b)          Voting
Rights. Each Lender shall retain the sole right to approve, without the consent of any Participant, any amendment, modification
or waiver of any provision of the Loan Documents provided that each such Lender may agree in its participation agreement
with its Participant that such Lender will not vote to approve any amendment, modification or waiver with respect to any Outstanding
Credit Exposure or Commitment in which such Participant has an interest which would require consent of all of the Lenders pursuant
to the terms of Section 8.3 or of any other Loan Document.


 


(c)          Benefit
of Certain Provisions. The Borrower agrees that each Participant shall be deemed to have the right of setoff provided in Section
11.1 in respect of its participating interest in amounts owing under the Loan Documents to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under the Loan Documents, provided that each Lender shall
retain the right of setoff provided in Section 11.1 with respect to the amount of participating interests sold to each Participant.
The Lenders agree to share with each Participant, and each Participant, by exercising the right of setoff provided in Section 11.1,
agrees to share with each Lender, any amount received pursuant to the exercise of its right of setoff, such amounts to be shared
in accordance with Section 11.2 as if each Participant were a Lender. The Borrower further agrees that each Participant shall be
entitled to the benefits of Sections 3.1, 3.2, 9.6 and 9.10 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to Section 12.3, provided that (i) a Participant shall not be entitled to receive any greater payment
under Section 3.1 than the Lender who sold the participating interest to such Participant would have received had it retained such
interest for its own account, unless the sale of such interest to such Participant is made with the prior written consent of the
Borrower, and (ii) a Participant shall not be entitled to receive any greater payment under Section 3.2 than the Lender who sold
the participating interest to such Participant would have received had it retained such interest for its own account (A) except
to the extent such entitlement to receive a greater payment results from a change in treaty, law or regulation (or any change in
the interpretation or administration thereof by any Governmental Authority) that occurs after the Participant acquired the applicable
participation and (B), in the case of any Participant that would be a Non-U.S. Lender if it were a Lender, such Participant agrees
to comply with the provisions of Section 3.2 to the same extent as if it were a Lender (it being understood that the documentation
required under Section 3.2(f) shall be delivered to the participating Lender). Each Lender that sells a participation shall, acting
solely for this purpose as an Administrative 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 any Outstanding Credit
Exposure, any Note, any Commitment or any 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 Outstanding Credit Exposure,
any Note, any Commitment or any other obligations under the Loan Documents) to any Person except to the extent that such disclosure
is necessary to establish that such Outstanding Credit Exposure, any Note, any Commitment or any other obligations under the Loan
Documents 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.


 




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12.3.       Assignments.


 


(a)          Permitted
Assignments. Any Lender may at any time assign to one or more Eligible Assignees (“Purchasers”) all or any
part of its rights and obligations under the Loan Documents. Such assignment shall be substantially in the form of Exhibit B
or in such other form reasonably acceptable to the Administrative Agent as may be agreed to by the parties thereto. Each such assignment
with respect to a Purchaser which is not a Lender or an Affiliate of a Lender or an Approved Fund shall either be in an amount
equal to the entire applicable Commitment and Outstanding Credit Exposure of the assigning Lender or (unless the Administrative
Agent otherwise consents) be in an aggregate amount not less than $5,000,000. The amount of the assignment shall be based on the
Commitment or Outstanding Credit Exposure (if the Commitment has been terminated) subject to the assignment, determined as of the
date of such assignment or as of the “Trade Date,” if the “Trade Date” is specified in the assignment.


 


(b)          Consents.
The consent of the Administrative Agent shall be required prior to an assignment becoming effective unless the Purchaser is a Lender,
an Affiliate of a Lender or an Approved Fund. Any consent required under this Section 12.3(b) shall not be unreasonably withheld
or delayed.


 




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(c)          Effect:
Assignment Effective Date. Upon (i) delivery to the Administrative Agent of an assignment, together with any consents required
by Sections 12.3(a) and 12.3(b), and (ii) payment of a $3,500 fee to the Administrative Agent for processing such assignment (unless
such fee is waived by the Administrative Agent), such assignment shall become effective on the effective date specified in such
assignment. The assignment shall contain a representation by the Purchaser to the effect that none of the consideration used to
make the purchase of the Commitment and Outstanding Credit Exposure under the applicable assignment agreement constitutes “plan
assets” as defined under ERISA and that the rights and interests of the Purchaser in and under the Loan Documents will not
be “plan assets” under ERISA. On and after the effective date of such assignment, such Purchaser shall for all purposes
be a Lender party to this Agreement and any other Loan Document executed by or on behalf of the Lenders and shall have all the
rights and obligations of a Lender under the Loan Documents, to the same extent as if it were an original party thereto, and the
transferor Lender shall be released with respect to the Commitment and Outstanding Credit Exposure assigned to such Purchaser without
any further consent or action by the Borrower, the Lenders or the Administrative Agent. In the case of an assignment covering all
of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a Lender hereunder but
shall continue to be entitled to the benefits of, and subject to, those provisions of this Agreement and the other Loan Documents
which survive payment of the Obligations and termination of the applicable agreement. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this Section 12.3 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 Section 12.2. Upon the consummation
of any assignment to a Purchaser pursuant to this Section 12.3(c), the transferor Lender, the Administrative Agent and the Borrower
shall, if the transferor Lender or the Purchaser desires that its Loans be evidenced by Notes, make appropriate arrangements so
that new Notes or, as appropriate, replacement Notes are issued to such transferor Lender and new Notes or, as appropriate, replacement
Notes, are issued to such Purchaser, in each case in principal amounts reflecting their respective Commitments, as adjusted pursuant
to such assignment.


 


(d)          Register.
The Administrative Agent, acting solely for this purpose as an Administrative Agent of the Borrower, shall maintain at one of its
offices in the United States of America, a copy of each Assignment and Assumption delivered to it 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 owing
to, each Lender, pursuant to the terms hereof from time to time (the “Register”). The entries in the Register
shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may 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, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and each Lender at any reasonable time and from time to
time upon reasonable prior notice.


 


(e)          Dissemination
of Information. The Borrower authorizes each Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a “Transferee”) and any prospective Transferee any
and all information in such Lender’s possession; provided that each Transferee and prospective Transferee agrees to
be bound by Section 9.11 of this Agreement.


 




    	 	61	 



     


    

  


ARTICLE
XIII


 


NOTICES


 


13.1.       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 paragraph (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:


 


(i)           if
to the Borrower, to it at:


 


Orchids Paper Products
Company


201 Summit View Dr.,
Suite 110


Brentwood, Tennessee
37027


Attention: Jeffrey
Schoen


Email: jsschoen@orchidspaper.com


Facsimile: 918-824-4660;


 


with a copy to
(which shall not constitute notice):


 


Polsinelli LLP


150 N. Riverside
Plaza


Suite 3000


Chicago, Illinois
60606


Attention: Jerry
L. Switzer, Jr.


Email: jswitzer@polsinelli.com


 


(ii)          if
to the Administrative Agent, to it at:


 


Black Diamond Commercial
Finance, L.L.C.


One Hundred Field
Drive


Lake Forest, Illinois
60045-2596


Attention: Hugo H.
Gravenhorst


Email: hgravenhorst@bdcf.com;


 


with a copy to
(which shall not constitute notice):


 


Winston & Strawn
LLP


35 W. Wacker Drive


Chicago, Illinois
60601


Attention: Timothy
J. Dable


Email: tdable@winston.com


 


(iii)         if
to a Lender, to it at its address (or facsimile number) set forth in its Administrative Questionnaire.


 


Notices sent by hand or overnight courier service,
or mailed by certified or registered mail, shall be deemed to have been given when received; notices 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 delivered through electronic
communications to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b).


 




    	 	62	 



     


    

  


(b)          Electronic
Communications. Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communication
(including email and internet or intranet websites) pursuant to procedures approved by the Administrative Agent or as otherwise
determined by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to
Article II if such Lender has notified the Administrative Agent that it is incapable of receiving notices under such Article by
electronic communication. The Administrative Agent or the Borrower may, in its respective discretion, agree to accept notices and
other communications to it hereunder by electronic communications pursuant to procedures approved by it or as it otherwise determines,
provided that such determination or approval 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), provided that if such notice or other communication is not given during
the normal business hours of the recipient, such notice or communication shall be deemed to have been given at the opening of business
on the next Business Day for the recipient, 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.


 


(c)          Change
of Address. Etc. Any party hereto may change its address or facsimile number for notices and other communications hereunder
by notice to the other parties hereto given in the manner set forth in this Section 13.1.


 


ARTICLE
XIV


 


COUNTERPARTS;
INTEGRATION: EFFECTIVENESS: ELECTRONIC EXECUTION


 


14.1.       Counterparts:
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. Except as
provided in Article IV, 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 which, when taken together, bear the signatures of each of
the parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.


 




    	 	63	 



     


    

 


14.2.       Electronic
Execution of Assignments. The words “execution,” “signed,” “signature,” and words
of like import in any assignment and assumption agreement shall be deemed to include electronic signatures 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, or any other state laws based on the Uniform Electronic
Transactions Act.


 


ARTICLE
XV


 


CHOICE
OF LAW: CONSENT TO JURISDICTION: WAIVER OF JURY TRIAL


 


15.1.       CHOICE
OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED
IN ACCORDANCE WITH THE BANKRUPTCY CODE AND THE INTERNAL LAWS (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF
NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.


 


15.2.       CONSENT
TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE BANKRUPTCY COURT
AND ANY UNITED STATES FEDERAL OR STATE COURT SITTING IN NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE
RIGHT OF THE ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT
OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT
SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK.


 


15.3.       WAIVER
OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.


 


15.4.       Acknowledgement
and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document
or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability
of any EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to
the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to
be bound by:


 




    	 	64	 



     


    

  


(a)          the
application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which
may be payable to it by any party hereto that is an EEA Financial Institution; and


 


(b)          the
effects of any Bail-in Action on any such liability, including, if applicable:


 


(i)           a
reduction in full or in paid or cancellation of any such liability;


 


(ii)          a
conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution,
its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or
other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement
or any other Loan Document; or


 


(iii)         the
variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution
Authority.


 


[Signature Pages Follow]


 




    	 	65	 



     


    

 


IN WITNESS WHEREOF, the
Borrower, the Lenders and the Administrative Agent have executed this Agreement as of the date first above written.


 


	 	ORCHIDS PAPER PRODUCTS COMPANY, a Delaware corporation
	 	 
	 	By:	                                       


 


Signature Page to


Senior Secured
Superpriority Debtor-in-Possession Credit Agreement 


 




    	 	 	 



     


    

 


	 	BLACK DIAMOND COMMERCIAL FINANCE, L.L.C., as Administrative Agent


 


	 	By:	                                    


 


Signature Page to


Senior Secured Superpriority Debtor-in-Possession
Credit Agreement 


 




    	 	 	 



     


    

 


	 	ORCHIDS INVESTMENT LLC, as a Lender


 


	 	By:	        





	 	Name:	 





	 	Title:	 


 


Signature Page to


Senior Secured Superpriority Debtor-in-Possession
Credit Agreement