Exhibit 10.1


 


EXECUTION COPY





  





 



 





 


AMENDED AND RESTATED


CREDIT AGREEMENT


 


dated as of


 


April 16, 2019


 


among


 


AKORN, INC.


 


The Other Loan Parties Party Hereto,


 


The Lenders Party Hereto,



JPMORGAN CHASE BANK, N.A.,

as Administrative Agent,






and


 


BANK OF AMERICA, N.A.,

as Syndication Agent


 


 



 


JPMORGAN CHASE BANK, N.A. and BANK OF AMERICA,
N.A.,

as Joint Bookrunners and Joint Lead Arrangers







 





 



 


ASSET BASED LENDING


 


THIS AGREEMENT PROVIDES FOR AN UNCOMMITTED
CREDIT FACILITY. ALL EXTENSIONS OF CREDIT HEREUNDER ARE DISCRETIONARY ON THE PART OF EACH LENDER IN ITS SOLE AND ABSOLUTE DISCRETION.



 




     


     


    

 


TABLE OF CONTENTS


 





	 	 	Page
	 	 	 
	ARTICLE I. DEFINITIONS	1
	SECTION 1.01	Defined Terms	1
	SECTION 1.02	Classification of Loans and Borrowings	33
	SECTION 1.03	Terms Generally	33
	SECTION 1.04	Accounting Terms; GAAP	33
	SECTION 1.05	Status of Obligations	34
	SECTION 1.06	Interest Rates; LIBOR Notification	34
	SECTION 1.07	Amendment and Restatement of the Existing ABL Credit Agreement	35
	SECTION 1.08	UNCOMMITTED CREDIT FACILITY	35
	 	 	 
	ARTICLE II. THE CREDITS	36
	 	 	 
	SECTION 2.01	Revolving Line Portions	36
	SECTION 2.02	Loans and Borrowings	36
	SECTION 2.03	Requests and Approvals for Revolving Borrowings	37
	SECTION 2.04	[Intentionally Omitted.]	37
	SECTION 2.05	[Intentionally Omitted.]	37
	SECTION 2.06	Letters of Credit	37
	SECTION 2.07	Funding of Borrowings	42
	SECTION 2.08	Interest Elections	42
	SECTION 2.09	Termination and Reduction of Revolving Line Portions	43
	SECTION 2.10	Repayment of Loans; Evidence of Debt	44
	SECTION 2.11	Prepayment of Loans	45
	SECTION 2.12	Fees	46
	SECTION 2.13	Interest	47
	SECTION 2.14	Alternate Rate of Interest; Illegality	48
	SECTION 2.15	Increased Costs	49
	SECTION 2.16	Break Funding Payments	51
	SECTION 2.17	Withholding of Taxes; Gross-Up	51
	SECTION 2.18	Payments Generally; Allocation of Proceeds; Sharing of Set-offs	55
	SECTION 2.19	Mitigation Obligations; Replacement of Lenders	57
	SECTION 2.20	Defaulting Lenders	57
	SECTION 2.21	Returned Payments	58
	SECTION 2.22	Banking Services and Swap Agreements	58
	 	 	 
	ARTICLE III. REPRESENTATIONS AND WARRANTIES	59
	 	 	 
	SECTION 3.01	Organization; Powers	59
	SECTION 3.02	Authorization; Enforceability	59
	SECTION 3.03	Governmental Approvals; No Conflicts	59
	SECTION 3.04	Financial Condition; No Material Adverse Change	59
	SECTION 3.05	Properties	59
	SECTION 3.06	Litigation and Environmental Matters	60



 



     


     


    

 


	SECTION 3.07	Compliance with Laws and Agreements; No Default	60
	SECTION 3.08	Investment Company Status	60
	SECTION 3.09	Taxes	60
	SECTION 3.10	ERISA	60
	SECTION 3.11	Disclosure	61
	SECTION 3.12	Solvency	61
	SECTION 3.13	Insurance	61
	SECTION 3.14	Capitalization and Subsidiaries	61
	SECTION 3.15	Security Interest in Collateral	62
	SECTION 3.16	Employment Matters	62
	SECTION 3.17	Federal Reserve Regulations	62
	SECTION 3.18	Use of Proceeds	62
	SECTION 3.19	Anti-Corruption Laws and Sanctions	62
	SECTION 3.20	EEA Financial Institutions	62
	 	 	 
	ARTICLE IV. CONDITIONS	63
	 	 	 
	SECTION 4.01	Effective Date	63
	SECTION 4.02	Each Credit Event	64
	 	 	 
	ARTICLE V. AFFIRMATIVE COVENANTS	64
	 	 	 
	SECTION 5.01	Financial Statements; Borrowing Base and Other Information	64
	SECTION 5.02	Notices of Material Events	67
	SECTION 5.03	Existence; Conduct of Business	68
	SECTION 5.04	Payment of Obligations	68
	SECTION 5.05	Maintenance of Properties	68
	SECTION 5.06	Books and Records; Inspection Rights	68
	SECTION 5.07	Compliance with Laws and Material Contractual Obligations	69
	SECTION 5.08	Use of Proceeds	69
	SECTION 5.09	Insurance	69
	SECTION 5.10	Appraisals	69
	SECTION 5.11	Field Examinations	70
	SECTION 5.12	[Intentionally Omitted]	70
	SECTION 5.13	Additional Collateral; Further Assurances	70
	SECTION 5.14.	Designation of Subsidiaries	71
	 	 	 
	ARTICLE VI. NEGATIVE COVENANTS	72
	 	 	 
	SECTION 6.01	Indebtedness	72
	SECTION 6.02	Liens	74
	SECTION 6.03	Fundamental Changes	75
	SECTION 6.04	Investments, Loans, Advances, Guarantees and Acquisitions	76
	SECTION 6.05	Asset Sales	77
	SECTION 6.06	Sale and Leaseback Transactions	78
	SECTION 6.07	Swap Agreements	78
	SECTION 6.08	Restricted Payments; Subordinated Indebtedness	78
	SECTION 6.09	Transactions with Affiliates	79



 



     


     


    

 


	SECTION 6.10	Restrictive Agreements	80
	SECTION 6.11	Amendment of Organizational Documents	80
	SECTION 6.12	[Intentionally Omitted	80
	SECTION 6.13	Financial Covenant – Fixed Charge Coverage Ratio	80
	 	 	 
	ARTICLE VII. EVENTS OF DEFAULT	81
	 	 	 
	ARTICLE VIII. THE ADMINISTRATIVE AGENT	83
	 	 	 
	SECTION 8.01	Authorization and Action	83
	SECTION 8.02	Administrative Agent’s Reliance, Indemnification, Etc	86
	SECTION 8.03	Posting of Communications	87
	SECTION 8.04	The Administrative Agent Individually.	88
	SECTION 8.05	Successor Administrative Agent	88
	SECTION 8.06	Acknowledgements of Lenders and Issuing Bank	89
	SECTION 8.07	Collateral Matters	90
	SECTION 8.08	Credit Bidding	91
	SECTION 8.09	Certain ERISA Matters	92
	SECTION 8.10	Flood Laws	93
	 	 	 
	ARTICLE IX. MISCELLANEOUS	93
	 	 	 
	SECTION 9.01	Notices	93
	SECTION 9.02	Waivers; Amendments	95
	SECTION 9.03	Expenses; Indemnity; Damage Waiver	97
	SECTION 9.04	Successors and Assigns	99
	SECTION 9.05	Survival	104
	SECTION 9.06	Counterparts; Integration; Effectiveness; Electronic Execution	104
	SECTION 9.07	Severability	104
	SECTION 9.08	Right of Setoff	105
	SECTION 9.09	Governing Law; Jurisdiction; Consent to Service of Process	105
	SECTION 9.10	WAIVER OF JURY TRIAL	106
	SECTION 9.11	Headings	106
	SECTION 9.12	Confidentiality	106
	SECTION 9.13	Several Obligations; Nonreliance; Violation of Law	107
	SECTION 9.14	USA PATRIOT Act	107
	SECTION 9.15	Disclosure	107
	SECTION 9.16	Appointment for Perfection	107
	SECTION 9.17	Interest Rate Limitation	108
	SECTION 9.18	No Fiduciary Duty, etc	108
	SECTION 9.19	Authorization to Distribute Certain Materials to Public-Siders	109
	SECTION 9.20	Intercreditor Arrangements	109
	SECTION 9.21	Acknowledgement and Consent to Bail-In of EEA Financial Institutions	110
	SECTION 9.22	Release	110
	 	 	 
	ARTICLE X. LOAN GUARANTY	111
	 	 	 
	SECTION 10.01	Guaranty	111



 






     


     


    

 


	SECTION 10.02	Guaranty of Payment	111
	SECTION 10.03	No Discharge or Diminishment of Loan Guaranty	111
	SECTION 10.04	Defenses Waived	112
	SECTION 10.05	Rights of Subrogation	112
	SECTION 10.06	Reinstatement; Stay of Acceleration	113
	SECTION 10.07	Information	113
	SECTION 10.08	Termination	113
	SECTION 10.09	Taxes	113
	SECTION 10.10	Maximum Liability	113
	SECTION 10.11	Contribution	114
	SECTION 10.12	Liability Cumulative	114
	SECTION 10.13	Keepwell	115




  


SCHEDULES:


 


Revolving Line Portion Schedule


Schedule 3.01 — Disclosed Matters


Schedule 3.05 — Properties


Schedule 3.13 — Insurance


Schedule 3.14 – Capitalization and Subsidiaries


Schedule 6.01 — Existing Indebtedness


Schedule 6.02 — Existing Liens


Schedule 6.04 — Existing Investments


Schedule 6.10 — Existing Restrictions


 


EXHIBITS:


 


Exhibit A — Form of Assignment and Assumption


Exhibit B — [Intentionally Omitted]


Exhibit C — Form of Borrowing Base Certificate


Exhibit D — Form of Compliance Certificate


Exhibit E — Joinder Agreement


Exhibit F-1 — U.S. Tax Certificate (For Foreign Lenders
that are not Partnerships for U.S. Federal Income Tax Purposes)


Exhibit F-2 — U.S. Tax Certificate (For Foreign Participants
that are not Partnerships for U.S. Federal Income Tax Purposes)


Exhibit F-3 — U.S. Tax Certificate (For Foreign Participants
that are Partnerships for U.S. Federal Income Tax Purposes)


Exhibit F-4 — U.S. Tax Certificate (For Foreign Lenders
that are Partnerships for U.S. Federal Income Tax Purposes)


Exhibit G — List of Closing Documents


 




     


     


    

 


AMENDED AND RESTATED
CREDIT AGREEMENT dated as of April 16, 2019 (as it may be amended or modified from time to time, this “Agreement”)
among AKORN, INC., the other Loan Parties party hereto, the Lenders party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative
Agent.


 


WHEREAS, the Loan Parties,
the Lenders and the Administrative Agent are currently party to the Credit Agreement, dated as of April 17, 2014 (as amended, supplemented
or otherwise modified prior to the date hereof, the “Existing ABL Credit Agreement”);


 


WHEREAS, the Loan Parties,
the Lenders and the Administrative Agent have agreed to enter into this Agreement in order to (i) amend and restate the Existing
ABL Credit Agreement in its entirety; (ii) modify and re-evidence the “Obligations” under, and as defined in, the Existing
ABL Credit Agreement, which shall be repayable in accordance with the terms of this Agreement and the other Loan Documents; and
(iii) set forth the terms and conditions under which each Lender may (but shall have no obligation to), from time to time, on an
uncommitted and absolutely discretionary basis, make loans and extend other financial accommodations to or for the benefit of the
Loan Parties;


 


WHEREAS, it is the
intent of the parties hereto that this Agreement not constitute a novation of the obligations and liabilities of the parties under
the Existing ABL Credit Agreement or be deemed to evidence or constitute full repayment of such obligations and liabilities, but
that this Agreement amend and restate in its entirety the Existing ABL Credit Agreement and re-evidence the obligations and liabilities
of the Borrower and the other Loan Parties outstanding thereunder, which shall be payable in accordance with the terms hereof;
and


 


WHEREAS, it is also
the intent of the Borrower and the “Loan Guarantors” (as referred to and defined in the Existing ABL Credit Agreement)
to confirm that all obligations under the “Loan Documents” (as referred to and defined in the Existing ABL Credit Agreement)
shall continue in full force and effect as modified and/or restated by the Loan Documents and that, from and after the Effective
Date, all references to the “Credit Agreement” contained in any such existing “Loan Documents” shall be
deemed to refer to this Agreement;


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein, the parties hereto hereby agree that the Existing ABL
Credit Agreement is hereby amended and restated as follows:


 


ARTICLE I.


 


Definitions


 


SECTION 1.01         Defined
Terms. As used in this Agreement, the following terms have the meanings specified below:


 


“ABL First
Priority Collateral” has the meaning assigned to such term in the Intercreditor Agreement.


 


“ABR”,
when used in reference to (a) a rate of interest, refers to the Alternate Base Rate, and (b) any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base Rate.


 


“Account”
has the meaning assigned to such term in the Security Agreement.


 


“Account Debtor”
means any Person obligated on an Account.


 




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“Acquisition”
means any transaction, or any series of related transactions, consummated on or after the Effective Date, by which any Loan Party
(a) acquires any going business or all or substantially all of the assets of any Person, whether through purchase of assets,
merger or otherwise, (b) 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 Equity Interests of a Person which has ordinary voting power for
the election of directors or other similar management personnel of a Person (other than Equity Interests having such power only
by reason of the happening of a contingency) or a majority of the outstanding Equity Interests of a Person or (c) consummates a
Drug Acquisition.


 


“Adjusted
LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period or for any ABR Borrowing, an interest
rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.


 


“Administrative
Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the Lenders hereunder.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.


 


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


 


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


 


“Aggregate
Revolving Line Portions” means, at any time, the aggregate Revolving Line Portions of all the Lenders, as reduced from
time to time pursuant to the terms and conditions hereof. As of the Effective Date, the Aggregate Revolving Line Portions is $150,000,000.


 


“Alternate
Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day,
(b) the NYFRB Rate in effect on such day plus 1⁄2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest
Period on such day (or if such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided that
for the purpose of this definition, the Adjusted LIBO Rate for any day shall be based on the LIBO Screen Rate (or if the LIBO Screen
Rate is not available for such one month Interest Period, the Interpolated Rate) at approximately 11:00 a.m. London time on such
day. Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate shall be
effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted LIBO Rate, respectively.
If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.14 hereof, then the Alternate Base
Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance
of doubt, if the Alternate Base Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes
of this Agreement.


 


“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
Funding Amount” means, with respect to any Lender that constitutes an Approving Lender for a requested Borrowing, an
amount equal to such Approving Lender’s Applicable Percentage of such Borrowing; provided that, if the amount of such
requested Borrowing exceeds the aggregate amount of unused Revolving Line Portions of all Approving Lenders, “Applicable
Funding Amount” shall mean such Approving Lender’s Applicable Percentage of the aggregate amount of unused Revolving
Line Portions of all Approving Lenders.


 




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“Applicable
Percentage” means, with respect to any Lender that constitutes an Approving Lender for a requested Borrowing, a percentage
equal to a fraction, the numerator of which is such Approving Lender’s unused Revolving Line Portion and the denominator
of which is the aggregate amount of unused Revolving Line Portions of all Approving Lenders with respect to such Borrowing.


 


“Applicable
Rate” means (a) with respect to any ABR Loan, 1.00% per annum and (b) with respect to any Eurodollar Loan, 2.00% per
annum.


 


“Approval
Deadline” has the meaning assigned to such term in Section 2.03.


 


“Approved
Fund” has the meaning assigned to such term in Section 9.04.


 


“Approving
Lender” means, with respect to any requested Borrowing, any Lender that has approved such Borrowing in accordance with
Section 2.03.


 


“Arranger”
means each of JPMorgan Chase Bank, N.A. and Bank of America, N.A., each in its capacity as joint lead arranger and joint bookrunner
for the credit facility evidenced by this Agreement.


 


“Assignment
and Assumption” means an assignment and assumption agreement entered into by a Lender and an assignee (with the consent
of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A
or any other form (including electronic records generated by the use of an electronic platform) approved by the Administrative
Agent.


 


“Availability”
means, at any time, an amount equal to (a) the lesser of (i) the Aggregate Revolving Line Portions and (ii) the
Borrowing Base minus (b) the Aggregate Credit Exposure.


 


“Availability
Period” means the period from and including the Effective Date to but excluding the earlier of the Maturity Date and
the date of termination of all of the Revolving Line Portions.


 


“Available
Revolving Line Portions” means, at any time, the Aggregate Revolving Line Portions minus the Aggregate Credit
Exposure.


 


“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.


 


“Banking Services”
means each and any of the following bank services provided to any Loan Party or its Subsidiaries by any Lender or any of its Affiliates:
(a) credit cards for commercial customers (including, without limitation, “commercial credit cards” and purchasing
cards), (b) stored value cards, (c) merchant processing services, and (d) treasury management services (including,
without limitation, controlled disbursement, automated clearinghouse transactions, return items, overdrafts and interstate depository
network services).


 




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“Banking Services
Obligations” means any and all obligations of the Loan Parties or their Subsidiaries, whether absolute or contingent
and howsoever and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof
and substitutions therefor) in connection with Banking Services.


 


“Banking Services
Reserves” means all Reserves which the Administrative Agent from time to time establishes in its Permitted Discretion
for Banking Services then provided or outstanding.


 


“Bankruptcy
Code” has the meaning assigned to such term in the definition of “Eligible Accounts”.


 


“Bankruptcy
Event” means, with respect to any Person, when such Person becomes the subject of a voluntary or involuntary bankruptcy
or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors
or similar Person charged with the reorganization or liquidation of its business, appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence
in, any such proceeding or appointment or has had any order for relief in such proceeding entered in respect thereof, provided
that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest,
in such Person by a Governmental Authority or instrumentality thereof, unless such ownership interest results in or provides such
Person with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs of attachment
on its assets or permits such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm
any contracts or agreements made by such Person.


 


“Beneficial
Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership
Regulation.


 


“Beneficial
Ownership Regulation” means 31 C.F.R. § 1010.230.


 


“Benefit Plan”
means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA,
(b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose
assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the
Code) the assets of any such “employee benefit plan” or “plan”.


 


“Board”
means the Board of Governors of the Federal Reserve System of the U.S.


 


“Borrower”
means Akorn, Inc., a Louisiana corporation.


 


“Borrowing”
means Revolving Loans of the same Type, made, converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect.


 


“Borrowing
Base” means, at any time, the sum of (a) 85% of the Loan Parties’ Eligible Accounts at such time, plus
(b) the lesser of (i) 65% of the Loan Parties’ Eligible Inventory (other than Eligible Finished Goods) at such
time, valued at the lower of cost or market value, determined on a first-in-first-out basis and (ii) the product of 85% multiplied
by the Net Orderly Liquidation Value percentage identified in the most recent inventory appraisal ordered by the Administrative
Agent multiplied by the Loan Parties’ Eligible Inventory (other than Eligible Finished Goods), valued at the lower
of cost or market value, determined on a first-in-first-out basis, plus (c) the lesser of (i) 75% of the Loan
Parties’ Eligible Finished Goods at such time, valued at the lower of cost or market value, determined on a first-in-first-out
basis and (ii) the product of 85% multiplied by the Net Orderly Liquidation Value percentage identified in the most
recent inventory appraisal ordered by the Administrative Agent multiplied by the Loan Parties’ Eligible Finished Goods,
valued at the lower of cost or market value, determined on a first-in-first-out basis, minus (d) Reserves.
The Administrative Agent may, in its Permitted Discretion, adjust Reserves used in computing the Borrowing Base. The Borrowing
Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Administrative
Agent pursuant to Section 5.01 of this Agreement.


 




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“Borrowing
Base Certificate” means a certificate, signed and certified as accurate and complete by a Financial Officer of the Borrower,
in substantially the form of Exhibit C or another form which is acceptable to the Administrative Agent in its sole
discretion.


 


“Borrowing
Request” means a request by the Borrower for a Revolving Borrowing in accordance with Section 2.03.


 


“Business
Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized
or required by law to remain closed; provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for general business in London.


 


“Canada”
means, collectively, Canada and each province and territory thereof.


 


“Capital Expenditures”
means, without duplication, any expenditure or commitment to expend money for any purchase or other acquisition of any asset which
would be classified as a fixed or capital asset on a consolidated balance sheet of the Borrower and its Restricted Subsidiaries
prepared in accordance with GAAP.


 


“Capital Lease
Obligations” of any Person means, subject to Section 1.04, the obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital leases or financing leases on a balance sheet of such Person
under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.


 


“CFC”
has the meaning assigned to such term in the definition of “Excluded Subsidiary”.


 


“Change in
Control” means (a) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person
or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the Effective
Date) of Equity Interests representing more than 35% (or, solely in the case of John N. Kapoor, Ph.D, the former Chairman of the
Board of Directors of the Borrower, 40%) of the aggregate ordinary voting power represented by the issued and outstanding Equity
Interests of the Borrower; (b) occupation of a majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were not (i) directors of the Borrower on the Effective Date, (ii) nominated or appointed by the board
of directors of the Borrower or (iii) approved by the board of directors of the Borrower for consideration by the stockholders
for election; or (c) the acquisition of direct or indirect Control of the Borrower by any Person or group.


 




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“Change in
Law” means the occurrence after the Effective Date or, with respect to any Lender, such later date on which such Lender
becomes a party to this Agreement) of any of the following: (a) the adoption of or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation
or application thereof by any Governmental Authority or (c) compliance by any Lender or the Issuing Bank (or, for purposes
of Section 2.15(b), by any lending office of such Lender or by such Lender’s or the Issuing Bank’s holding
company, if any) with any request, guideline, requirement or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the Effective Date; provided that, notwithstanding anything herein to the contrary, (x) the
Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements or directives thereunder
or issued in connection therewith or in the implementation thereof, and (y) all requests, rules, guidelines, requirements
or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor
or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each
case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.


 


“Charges”
has the meaning assigned to such term in Section 9.17.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Collateral”
means any and all property owned, leased or operated by a Person covered by the Collateral Documents and any and all other property
of any Loan Party, now existing or hereafter acquired, that may at any time be, become or be intended to be, subject to a security
interest or Lien in favor of the Administrative Agent, on behalf of itself and the Lenders and other Secured Parties, to secure
the Secured Obligations; provided, that the Collateral shall not include Excluded Assets.


 


“Collateral
Access Agreement” has the meaning assigned to such term in the Security Agreement.


 


“Collateral
Documents” means, collectively, the Security Agreement, the Mortgages and any other agreements, instruments and documents
executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure the Secured Obligations,
including, without limitation, all other security agreements, pledge agreements, mortgages, deeds of trust, loan agreements, notes,
guarantees, subordination agreements, pledges, powers of attorney, consents, assignments, contracts, fee letters, notices, leases,
financing statements and all other written matter whether theretofore, now or hereafter executed by the Borrower or any of the
Restricted Subsidiaries and delivered to the Administrative Agent.


 


“Collection
Account” has the meaning assigned to such term in the Security Agreement.


 


“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.


 


“Communications”
has the meaning assigned to such term in Section 8.03(c).


 


“Compliance
Period” means any period commencing on the date that Excess Availability is less than the Covenant Trigger Amount, and
continuing until Excess Availability is subsequently greater than or equal to the Covenant Trigger Amount for 45 consecutive calendar
days; provided, however, that if two separate, non-overlapping Compliance Periods have commenced and subsequently
ended during any calendar year, the third Compliance Period during such calendar year shall end no earlier than December 31 of
such year.


 


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


 




    	6



     


    

 


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


 


“Covenant
Trigger Amount” means the greater of (i) 10.0% of the Aggregate Revolving Line Portions and (ii) $15,000,000.


 


“Credit Exposure”
means, as to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Revolving Loans and LC
Exposure at such time.


 


“Credit Party”
means the Administrative Agent, any Issuing Bank or any other Lender.


 


“Default”
means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.


 


“Defaulting
Lender” means any Lender that (a) has failed, within two Business Days of the date required to be paid, to pay over
to any Credit Party any amount required to be paid by it hereunder, (b) has notified the Borrower or any Credit Party in writing,
or has made a public statement, to the effect that it does not intend or expect to comply with any of its funding obligations under
agreements in which it commits to extend credit or (c) has become the subject of (i) a Bankruptcy Event or (ii) a Bail-In
Action.


 


“Disclosed
Matters” means the actions, suits, proceedings and environmental matters disclosed in Schedule 3.01.


 


“Disqualified
Equity Interest” means, with respect to any Person, any Equity Interest in such Person that by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable, either mandatorily or at the option of the holder
thereof), or upon the happening of any event or condition:


 


(a) matures or is mandatorily
redeemable (other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash
in lieu of fractional shares of such Equity Interests), whether pursuant to a sinking fund obligation or otherwise;


 


(b) is convertible
or exchangeable at the option of the holder thereof for Indebtedness or Equity Interests (other than solely for Equity Interests
in such Person that do not constitute Disqualified Equity Interests and cash in lieu of fractional shares of such Equity Interests);
or


 


(c) is or may be redeemable
(other than solely for Equity Interests in such Person that do not constitute Disqualified Equity Interests and cash in lieu of
fractional shares of such Equity Interests) or is or may be required to be repurchased by such Person or any of its Affiliates,
in whole or in part, at the option of the holder thereof;


 


in each case, on or
prior to the date that occurs 91 days after the Maturity Date.


 




    	7



     


    

 


“Disqualified
Institution” means (a) Persons that are reasonably determined by the Borrower to be competitors of the Borrower or its
Subsidiaries and which have been specifically identified by the Borrower to the Administrative Agent in writing prior to the Effective
Date (“Disqualified Competitors”) and (b) any of such Disqualified Competitors’ Affiliates to the extent
such Affiliates (x) are clearly identifiable as affiliates of Disqualified Competitors based solely on the similarity of such Affiliates’
and such Disqualified Competitors’ names and (y) are not bona fide debt investment funds that are Affiliates of Disqualified
Competitors; provided that, solely with respect to the foregoing clause (a), the Borrower, upon reasonable notice
to the Administrative Agent after the Effective Date, shall be permitted to supplement in writing by name the list of Persons that
are Disqualified Competitors to the extent such supplemented Person is a competitor (or Affiliate thereof, other than a bona fide
debt investment fund) of the Borrower or its Subsidiaries, which supplement shall become effective three (3) Business Days after
delivery to the Administrative Agent and the Lenders in accordance with Section 9.01, but which shall not apply retroactively
to disqualify any parties that have previously acquired an assignment or participation interest in the Loans (but solely with respect
to such Loans). It is understood and agreed that (i) the Administrative Agent shall have no responsibility or liability to determine
or monitor whether any Lender or potential Lender is a Disqualified Institution, (ii) the Borrower’s failure to deliver such
list (or supplement thereto) in accordance with Section 9.01 shall render such list (or supplement) not received and not
effective and (iii) “Disqualified Institution” shall exclude any Person that the Borrower has designated as no longer
being a “Disqualified Institution” by written notice delivered to the Administrative Agent from time to time in accordance
with Section 9.01.


 


“Dividing
Person” has the meaning assigned to such term in the definition of “Division”.


 


“Division”
means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two
or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the
Dividing Person and pursuant to which the Dividing Person may or may not survive.


 


“Division
Successor” means any Person that, upon the consummation of a Division of a Dividing Person, holds all or any portion
of the assets, liabilities and/or obligations previously held by such Dividing Person immediately prior to the consummation of
such Division. A Dividing Person which retains any of its assets, liabilities and/or obligations after a Division shall be deemed
a Division Successor upon the occurrence of such Division.


 


“Document”
has the meaning assigned to such term in the Security Agreement.


 


“dollars”
or “$” refers to lawful money of the U.S.


 


“Domestic
Subsidiary” means a Subsidiary organized under the laws of a jurisdiction located in the U.S.


 


“DQ List”
has the meaning assigned to such term in Section 9.04(e)(iv).


 


“Drug Acquisition”
means any acquisition (including any license or any acquisition of any license) solely or primarily of all or any portion of the
rights in respect of one or more drugs or pharmaceutical products, whether in development or on market (including related intellectual
property), but not of Equity Interests in any Person or any operating business unit.


 


“EBITDA”
means, for any period, Net Income for such period plus (a) without duplication and to the extent deducted in determining Net
Income for such period, the sum of (i) Interest Expense for such period, (ii) income tax expense for such period, (iii) all
amounts attributable to depreciation and amortization expense for such period, (iv) any extraordinary non-cash charges for
such period and (v) any other non-cash charges for such period (but excluding any non-cash charge in respect of an item that
was included in Net Income in a prior period and any non-cash charge that relates to the write-down or write-off of inventory),
minus (b) without duplication and to the extent included in Net Income, (i) income tax credits and refunds (to
the extent not netted from tax expense), (ii) any cash payments made during such period in respect of non-cash charges described
in clause (a)(v) taken in a prior period and (iii) any extraordinary gains and any non-cash items of income for
such period, all calculated for the Borrower and its Restricted Subsidiaries on a consolidated basis in accordance with GAAP.


 




    	8



     


    

 


“ECP”
means an “eligible contract participant” as defined in Section 1(a)(18) of the Commodity Exchange Act or
any regulations promulgated thereunder and the applicable rules issued by the Commodity Futures Trading Commission and/or the SEC.


 


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


 


“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 4.01 are satisfied (or waived in accordance
with Section 9.02).


 


“Electronic
Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record
and adopted by a Person with the intent to sign, authenticate or accept such contract or record.


 


“Electronic
System” means any electronic system, including e-mail, e-fax, web portal access for the Borrower and any other Internet
or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent or the Issuing
Bank and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other
security system.


 


“Eligible
Accounts” means, at any time, the Accounts of the Loan Parties which the Administrative Agent determines in its Permitted
Discretion are eligible as the basis for the extension of Revolving Loans and the issuance of Letters of Credit. Without limiting
the Administrative Agent’s discretion provided herein, Eligible Accounts shall not include any Account:


 


(a)          which
is not subject to a first priority perfected security interest in favor of the Administrative Agent;


 


(b)          which
is subject to any Lien other than (i) a Lien in favor of the Administrative Agent, (ii) a Permitted Encumbrance which
does not have priority over the Lien in favor of the Administrative Agent and (iii) Liens permitted under Section 6.02(c);


 


(c)          (i)
with respect to which the scheduled due date is equal to or more than 90 days (or, with respect to Accounts of Account Debtors
that the Administrative Agent approves in writing from time to time in its sole discretion, 120 days) after the date of the original
invoice therefor, (ii) which is unpaid more than 90 days (or, with respect to Accounts of Account Debtors that the Administrative
Agent approves in writing from time to time in its sole discretion, 120 days) after the date of the original invoice therefor or
more than 60 days after the original due date therefor (“Overage”) (when calculating the amount under this
clause (ii), for the same Account Debtor, the Administrative Agent shall include the net amount of such Overage and
add back any credits, but only to the extent that such credits do not exceed the total gross receivables from such Account Debtor),
or (iii) which has been written off the books of the applicable Loan Party or otherwise designated as uncollectible;


 




    	9



     


    

 


(d)          which
is owing by an Account Debtor for which more than 50% of the Accounts owing from such Account Debtor and its Affiliates are ineligible
hereunder;


 


(e)          which
is owing by an Account Debtor to the extent the aggregate amount of Accounts owing from such Account Debtor and its Affiliates
to the Loan Parties exceeds 20% of the aggregate Eligible Accounts owing by an Account Debtor other than Cardinal Health, AmerisourceBergen,
or McKesson Corporation and any of their Affiliates; provided that, notwithstanding the foregoing, (i) if such Account Debtor
is Cardinal Health or any of its Affiliates, then Accounts owing from such Account Debtor shall not be excluded from “Eligible
Accounts” pursuant to this clause to the extent the aggregate amount of Accounts owing from such Account Debtor and
its Affiliates to the Loan Parties does not collectively exceed 40% of the aggregate amount of Eligible Accounts (or such higher
percentage as the Administrative Agent may establish for such Account Debtor from time to time in its Permitted Discretion), (ii)
if such Account Debtor is AmerisourceBergen or any of its Affiliates, then Accounts owing from such Account Debtor shall not be
excluded from “Eligible Accounts” pursuant to this clause to the extent the aggregate amount of Accounts owing
from such Account Debtor and its Affiliates to the Loan Parties does not collectively exceed 40% of the aggregate amount of Eligible
Accounts (or such higher percentage as the Administrative Agent may establish for such Account Debtor from time to time in its
Permitted Discretion) and (iii) if such Account Debtor is McKesson Corporation or any of its Affiliates, then Accounts owing from
such Account Debtor shall not be excluded from “Eligible Accounts” pursuant to this clause to the extent the
aggregate amount of Accounts owing from such Account Debtor and its Affiliates to the Loan Parties does not collectively exceed
40% of the aggregate amount of Eligible Accounts (or such higher percentage as the Administrative Agent may establish for such
Account Debtor from time to time in its Permitted Discretion);


 


(f)          with
respect to which any covenant, representation or warranty contained in this Agreement or in the Security Agreement has been breached
or is not true;


 


(g)          which
(i) does not arise from the sale of goods or performance of services in the ordinary course of business, (ii) is not
evidenced by an invoice or other documentation reasonably satisfactory to the Administrative Agent which has been sent to the Account
Debtor, (iii) represents a progress billing, (iv) is contingent upon the applicable Loan Party’s completion of
any further performance, (v) represents a sale on a bill-and-hold, guaranteed sale, sale-and-return, sale on approval, consignment,
cash-on-delivery or any other repurchase or return basis or (vi) relates to payments of interest;


 


(h)          for
which the goods giving rise to such Account have not been shipped to the Account Debtor or for which the services giving rise to
such Account have not been performed by the applicable Loan Party or if such Account was invoiced more than once;


 


(i)           with
respect to which any check or other instrument of payment has been returned uncollected for any reason;


 




    	10



     


    

 


(j)           which
is owed by an Account Debtor which has (i) applied for, suffered, or consented to the appointment of any receiver, custodian,
trustee, or liquidator of its assets, (ii) had possession of all or a material part of its property taken by any receiver,
custodian, trustee or liquidator, (iii) filed, or had filed against it, any request or petition for liquidation, reorganization,
arrangement, adjustment of debts, adjudication as bankrupt, winding-up, or voluntary or involuntary case under any state or federal
bankruptcy laws (other than post-petition accounts payable of an Account Debtor that is a debtor-in-possession under Title 11
of the United States Code (11 U.S.C. 101 et seq.) (the “Bankruptcy Code”) and reasonably acceptable
to the Administrative Agent), (iv) admitted in writing its inability, or is generally unable to, pay its debts as they become
due, (v) become insolvent, or (vi) ceased operation of its business;


 


(k)          which
is owed by any Account Debtor which has sold all or a substantially all of its assets;


 


(l)           which
is owed by an Account Debtor which (i) does not maintain its chief executive office in the U.S. or Canada or (ii) is
not organized under applicable law of the U.S., any state of the U.S., Canada, or any province of Canada unless, in any such case,
such Account is backed by a letter of credit reasonably acceptable to the Administrative Agent;


 


(m)          which
is owed in any currency other than U.S. dollars and Canadian dollars;


 


(n)          which
is owed by (i) any Governmental Authority of any country other than the U.S. unless such Account is backed by a letter
of credit reasonably acceptable to the Administrative Agent, or (ii) any Governmental Authority of the U.S., or any department,
agency, public corporation, or instrumentality thereof, unless the Federal Assignment of Claims Act of 1940, as amended (31 U.S.C.
§ 3727 et seq. and 41 U.S.C. § 15 et seq.), and any other steps
necessary to perfect the Lien of the Administrative Agent in such Account have been complied with;


 


(o)          which
is owed by any Affiliate of any Loan Party or any employee, officer, director, agent or stockholder of any Loan Party or any of
its Affiliates;


 


(p)          which
is owed by an Account Debtor or any Affiliate of such Account Debtor to which any Loan Party is indebted, but only to the extent
of such indebtedness, or is subject to any security, deposit, progress payment, retainage or other similar advance made by or for
the benefit of an Account Debtor, in each case to the extent thereof;


 


(q)          which
is subject to any counterclaim, deduction, defense, setoff or dispute but only to the extent of any such counterclaim, deduction,
defense, setoff or dispute;


 


(r)          which
is evidenced by any promissory note, chattel paper or instrument;


 


(s)          which
is owed by an Account Debtor located in any jurisdiction which requires filing of a “Notice of Business Activities Report”
or other similar report in order to permit the applicable Loan Party to seek judicial enforcement in such jurisdiction of payment
of such Account, unless such Loan Party has filed such report or qualified to do business in such jurisdiction;


 


(t)           with
respect to which the applicable Loan Party has made any agreement with the Account Debtor for any reduction thereof, other than
discounts and adjustments given in the ordinary course of business but only to the extent of any such reduction, or any Account
which was partially paid and the applicable Loan Party created a new receivable for the unpaid portion of such Account;


 




    	11



     


    

 


(u)          which
does not comply in all material respects with the requirements of all applicable laws and regulations, whether Federal, state or
local, including without limitation the Federal Consumer Credit Protection Act, the Federal Truth in Lending Act and Regulation Z
of the Board;


 


(v)          which
is for goods that have been sold under a purchase order or pursuant to the terms of a contract or other agreement or understanding
(written or oral) that indicates or purports that any Person other than the applicable Loan Party has or has had an ownership interest
in such goods, or which indicates any party other than the applicable Loan Party as payee or remittance party; or


 


(w)         which
was created on cash on delivery terms.


 


In determining the
amount of an Eligible Account, the face amount of an Account may, in the Administrative Agent’s Permitted Discretion, be
reduced by, without duplication, to the extent not reflected in such face amount, (i) the amount of all accrued and actual
discounts, claims, credits or credits pending, promotional program allowances, price adjustments, returns, finance charges or other
allowances (including any amount that the Borrower may be obligated to rebate to an Account Debtor pursuant to the terms of any
agreement or understanding (written or oral)) and (ii) the aggregate amount of all cash received in respect of such Account
but not yet applied by the applicable Loan Party to reduce the amount of such Account.


 


“Eligible
Finished Goods” means, Eligible Inventory constituting finished goods to be sold by the Loan Parties in the ordinary
course of business, excluding Inventory constituting work-in-process, component Inventory or raw materials used or consumed by
the Loan Parties in the ordinary course of business in the manufacture or production of other Inventory.


 


“Eligible
Inventory” means, at any time, the Inventory of the Loan Parties which the Administrative Agent determines in its Permitted
Discretion is eligible as the basis for the extension of Revolving Loans and the issuance of Letters of Credit. Without limiting
the Administrative Agent’s discretion provided herein, Eligible Inventory shall not include any Inventory:


 


(a)          which
is not subject to a first priority perfected Lien in favor of the Administrative Agent (including, without limitation, for Inventory
located in Canada, a first priority perfected Lien pursuant to collateral documentation governed by the laws of Canada);


 


(b)          which
is subject to any Lien other than (i) a Lien in favor of the Administrative Agent, (ii) a Permitted Encumbrance which
does not have priority over the Lien in favor of the Administrative Agent and (iii) Liens permitted under Section 6.02(c);


 


(c)          which
is, in the Administrative Agent’s opinion, short-dated inventory, recalled inventory or slow moving, obsolete, unmerchantable,
defective, used, unfit for sale, not salable at prices approximating at least the cost of such Inventory in the ordinary course
of business or unacceptable due to age, type, category and/or quantity;


 


(d)          with
respect to which any covenant, representation or warranty contained in this Agreement or in the Security Agreement has been breached
or is not true in any material respect (or, with respect to any covenant, representation or warranty which is subject to any materiality
qualifier, has been breached or is not true in any respect) and which does not conform to all standards imposed by any Governmental
Authority;


 




    	12



     


    

 


(e)          in
which any Person other than the applicable Loan Party shall (i) have any direct or indirect ownership, interest or title or
(ii) be indicated on any purchase order or invoice with respect to such Inventory as having or purporting to have an interest
therein;


 


(f)          which
constitutes work-in-process, spare or replacement parts, subassemblies, packaging and shipping material, manufacturing supplies,
samples, prototypes, displays or display items, bill-and-hold or ship-in-place goods, goods that are returned or marked for return,
repossessed goods, defective or damaged goods, goods held on consignment, or goods which are not of a type held for sale in the
ordinary course of business; provided that, for purposes of clarity, Inventory shall not be excluded from “Eligible
Inventory” pursuant to this clause solely as a result of constituting raw materials or component Inventory;


 


(g)          which
is not located in the U.S. or Canada or is in transit with a common carrier from vendors and suppliers;


 


(h)          which
is located in any location leased by the applicable Loan Party unless (i) the lessor has delivered to the Administrative Agent
a Collateral Access Agreement or (ii) a Reserve for rent, charges and other amounts due or to become due with respect to such facility
has been established by the Administrative Agent in its Permitted Discretion;


 


(i)           which
is located in any third party warehouse or is in the possession of a bailee (other than a third party processor) and is not evidenced
by a Document, unless (i) such warehouseman or bailee has delivered to the Administrative Agent a Collateral Access Agreement and
such other documentation as the Administrative Agent may require or (ii) an appropriate Reserve has been established by the Administrative
Agent in its Permitted Discretion;


 


(j)           which
is being processed offsite at a third party location or outside processor, or is in-transit to or from such third party location
or outside processor, unless (i) such processor has delivered to the Administrative Agent a Collateral Access Agreement and such
other documentation as the Administrative Agent may require or (ii) an appropriate Reserve has been established by the Administrative
Agent in its Permitted Discretion;


 


(k)          which
is a discontinued product or component thereof;


 


(l)           which
is the subject of a consignment by the applicable Loan Party as consignor;


 


(m)          which
contains or bears any intellectual property rights licensed to the applicable Loan Party unless the Administrative Agent is satisfied
that it may sell or otherwise dispose of such Inventory without (i) infringing the rights of such licensor, (ii) violating
any contract with such licensor, or (iii) incurring any liability with respect to payment of royalties other than royalties
incurred pursuant to sale of such Inventory under the current licensing agreement;


 


(n)          which
is not reflected in a current perpetual inventory report of the applicable Loan Party; or


 


(o)          for
which reclamation rights have been asserted by the seller.


 


“Environmental
Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation
or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety
matters.


 




    	13



     


    

 


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


 


“Equipment”
has the meaning assigned to such term in the Security Agreement.


 


“Equity Interests”
means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests
in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof
to purchase or acquire any of the foregoing, but excluding any debt securities convertible into any of the foregoing.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated
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 Section 4001(14) of ERISA 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 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 302(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 or a determination that a Multiemployer Plan is, or is expected to be, insolvent
within the meaning of Title IV of ERISA.


 


“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.


 


“Eurodollar”,
when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest
at a rate determined by reference to the Adjusted LIBO Rate.


 


“Event of
Default” has the meaning assigned to such term in Article VII.


 




    	14



     


    

 


“Excess Availability”
means, at any time, an amount equal to Availability as of such time, plus the aggregate amount of unrestricted cash and Permitted
Investments of the Loan Parties at such time (in each case, to the extent maintained in segregated accounts at the Administrative
Agent and subject to control agreements in form and substance reasonably satisfactory to the Administrative Agent).


 


“Excess Availability
Reporting Period” means any period beginning on any date that Excess Availability is less than the Excess Availability
Threshold Amount and continuing until such date that Excess Availability is greater than or equal to the Excess Availability Threshold
Amount for twenty (20) consecutive days.


 


“Excess Availability
Threshold Amount” means the greater of (i) 12.5% of the Aggregate Revolving Line Portions and (ii) $15,000,000.


 


“Excluded
Assets” means (a) each fee owned real property with a value less than $5,000,000 or that is located in a jurisdiction
other than the United States, (b) all leasehold interests (except that the Loan Parties shall be required to deliver landlord waivers,
estoppels and Collateral Access Agreements to the extent (if any) the delivery thereof shall be required for assets at any applicable
locations to constitute “Eligible Inventory” to the extent the Loan Parties elect (in their sole discretion) to include
such assets in the Borrowing Base), (c) governmental licenses or state or local franchises, charters and authorizations to the
extent a security interest thereon is prohibited or restricted by applicable law, (d) pledges and security interests prohibited
or restricted by applicable law (with no requirement to obtain the consent of any Governmental Authority or third party, including,
without limitation, no requirement to comply with the Federal Assignment of Claims Act or any similar statute), (e) any lease,
license, permit or agreement or any property subject to such lease, license, permit or agreement to the extent that a grant of
a security interest therein would violate or invalidate such lease, license, permit or agreement or create a right of termination
in favor of any other party thereto or otherwise require consent thereunder (after giving effect to the applicable anti-assignment
provisions of the UCC or other applicable law), other than proceeds thereof, the assignment of which is expressly deemed effective
under the UCC or other applicable law notwithstanding such prohibition, (f) any assets to the extent a security interest in such
assets could result in adverse tax consequences or adverse regulatory consequences, in each case, as reasonably determined by the
Borrower in consultation with the Administrative Agent, (g) any intent-to-use trademark application prior to the filing of a “Statement
of Use” or “Amendment to Allege Use” with respect thereto, (h) interests in joint ventures and non-wholly owned
Subsidiaries which cannot be pledged without the consent of third parties, (i) any property subject to a purchase money arrangement
permitted to be incurred pursuant to the Loan Documents, (j) assets where the cost of obtaining a security interest therein exceeds
the practical benefit to the Lenders afforded thereby, in each case, as reasonably determined by the Borrower and the Administrative
Agent, (k) margin stock, (l) Equity Interests and assets of Unrestricted Subsidiaries, (m) voting Equity Interests of any CFC or
FSHCO in excess of 65% of any such class of Equity Interests and (n) except as may be required under the Loan Documents with respect
to assets included in the Borrowing Base, any assets located outside the United States or assets that require action under the
laws of any jurisdiction other than the United States to create or perfect a security interest in such assets, including any intellectual
property registered in any jurisdiction other than the United States.


 




    	15



     


    

 


“Excluded
Subsidiary” means (a) any Subsidiary to the extent the provision of a Guarantee hereunder by such Subsidiary would
result in adverse tax consequences as reasonably determined by the Borrower in consultation with the Administrative Agent, (b) captive
insurance companies, (c) not-for-profit Subsidiaries, (d) Special Purpose Entities (if any), (e) Subsidiaries that
are not Material Subsidiaries, (f) any Subsidiary to the extent a Guarantee hereunder by such Subsidiary is prohibited or
restricted by contracts or applicable law (including any requirement to obtain Governmental Authority or regulatory authority or
third party consent, approval, license or authorization) on the Effective Date or on the date of Acquisition of such Subsidiary
(so long as such prohibition or restriction is not created or entered into in contemplation of or in connection with such Person
becoming a Subsidiary), (g) Unrestricted Subsidiaries, (h) any Domestic Subsidiary that has no material liabilities and owns
no material assets other than Equity Interests, Indebtedness and/or Guarantees of debt of one or more Foreign Subsidiaries that
is a “controlled foreign corporation” (in each case, a “CFC”) as defined in Section 957
of the Code (each a “FSHCO”) and (i) any other Subsidiary to the extent the Borrower and the Administrative
Agent determine that the cost and/or burden of obtaining a Guarantee of the Obligations by such Subsidiary outweighs the benefits
provided thereby.


 


“Excluded
Swap Obligation” means, with respect to any Loan Guarantor, any Swap Obligation if, and to the extent that, all or a
portion of the Guarantee of such Loan Guarantor of, or the grant by such Loan 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 SEC (or the application or official interpretation of any thereof) (a) by
virtue of such Loan Guarantor’s failure for any reason to constitute an ECP at the time the Guarantee of such Loan Guarantor
or the grant of such security interest becomes or would become effective with respect to such Swap Obligation or (b) in the
case of a Swap Obligation subject to a clearing requirement pursuant to Section 2(h) of the Commodity Exchange Act (or any
successor provision thereto), because such Loan Guarantor is a “financial entity,” as defined in Section 2(h)(7)(C)(i)
of the Commodity Exchange Act (or any successor provision thereto), at the time the Guarantee of such Loan Guarantor becomes or
would become effective with respect to such related 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 any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted
from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch
profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal
office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political
subdivision thereof) or (ii) that are Other Connection Taxes; (b) in the case of a Lender, U.S. Federal withholding Taxes imposed
on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan, Letter of Credit or Revolving
Line Portion pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan, Letter of Credit
or Revolving Line Portion (other than pursuant to an assignment request by the Borrower under Section 2.19(b)) or (ii) such Lender
changes its lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Taxes
were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan,
Letter of Credit or Revolving Line Portion or to such Lender immediately before it changed its lending office; (c) Taxes attributable
to such Recipient’s failure to comply with Section 2.17(f); and (d) any withholding Taxes imposed under FATCA.


 


“Extenuating
Circumstance” means any period during which the Administrative Agent has determined in its sole discretion (i) that due
to unforeseen and/or nonrecurring circumstances, it is impractical and/or not feasible to submit or receive a Borrowing Request
or Interest Election Request by email or fax or through Electronic System, and (ii) to accept a Borrowing Request or Interest Election
Request telephonically.


 


“FATCA”
means Sections 1471 through 1474 of the Code, as of the Effective Date (or any amended or successor version
that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official
interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or
regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental
Authorities and implementing such Sections of the Code.


 




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“Federal Funds
Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions
by depositary institutions (as determined in such manner as the NYFRB shall set forth on its public website from time to time)
and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate, provided that, if the Federal
Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to zero for the purposes of this Agreement.


 


“Financial
Officer” means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower.


 


“Fixed Charges”
means, for any period, without duplication, cash Interest Expense, plus scheduled principal payments on Indebtedness
actually made, plus expenses for taxes paid in cash, plus dividends or distributions paid in cash,
plus Capital Lease Obligation payments, plus cash contributions to any Plan not otherwise expensed
during such period, all calculated for the Borrower and its Restricted Subsidiaries on a consolidated basis in accordance with
GAAP.


 


“Fixed Charge
Coverage Ratio” means, for any period, the ratio of (a) EBITDA minus the unfinanced portion of Capital Expenditures
to (b) Fixed Charges, all calculated for such period for the Borrower and its Restricted Subsidiaries on a consolidated basis
in accordance with GAAP.


 


“Flood Laws”
has the meaning assigned to such term in Section 8.10.


 


“Foreign Lender”
means (a) if the Borrower is a U.S. Person, a Lender, with respect to such Borrower, that is not a U.S. Person,
and (b) if the Borrower is not a U.S. Person, a Lender, with respect to such Borrower, that is resident or organized
under the laws of a jurisdiction other than that in which the Borrower is resident for tax purposes.


 


“Foreign Subsidiary”
means any Subsidiary which is not a Domestic Subsidiary.


 


“FSHCO”
has the meaning assigned to such term in the definition of “Excluded Subsidiary”.


 


“Funding Account”
has the meaning assigned to such term in Section 4.01(g).


 


“GAAP”
means generally accepted accounting principles in the U.S.


 


“Governmental
Authority” means the government of the U.S., any other nation or 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.


 


“Guarantee”
of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing
or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”)
in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to
advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter
of credit or letter of guaranty issued to support such Indebtedness or obligation; provided, that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of business.


 




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“Guaranteed
Obligations” has the meaning assigned to such term in Section 10.01.


 


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


 


“Hostile Acquisition”
means (a) the acquisition of the Equity Interests of a Person through a tender offer or similar solicitation of the owners
of such Equity Interests which has not been approved (prior to such acquisition) by the board of directors (or any other applicable
governing body) of such Person or by similar action if such Person is not a corporation and (b) any such acquisition as to
which such approval has been withdrawn.


 


“IFRS”
means the body of pronouncements issued by the International Accounting Standards Board (IASB), including International Financial
Reporting Standards and interpretations approved by the IASB, International Accounting Standards and Standing Interpretations Committee
interpretations approved by the predecessor International Accounting Standards Committee and adapted for use in the European Union.


 


“Impacted
Interest Period” has the meaning assigned to such term in the definition of “LIBO Rate”.


 


“Indebtedness”
of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits
or advances of any kind, (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments,
(c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations
of such Person in respect of the deferred purchase price of property or services (excluding (i) current accounts payable incurred
in the ordinary course of business and (ii) any earn-out obligations until such obligations become liabilities on the balance sheet
of such Person in accordance with GAAP), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all
Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party
in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect
of bankers’ acceptances, (k) obligations under any liquidated earn-out, (l) any other Off-Balance Sheet Liability,
(m) obligations, 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 Swap Agreements, and
(ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Swap Agreement transaction, and (n)
all Disqualified Equity Interests. The Indebtedness of any Person shall include the Indebtedness of any other entity (including
any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s
ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that
such Person is not liable therefor.


 




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


 


“Indemnitee”
has the meaning assigned to such term in Section 9.03(b).


 


“Ineligible
Institution” has the meaning assigned to such term in Section 9.04(b).


 


“Information”
has the meaning assigned to such term in Section 9.12.


 


“Intercreditor
Agreement” means the Intercreditor Agreement, dated as of April 17, 2014, between the Administrative Agent on behalf
of the Secured Parties and the Term Loan Representative under the Term Loan Facility on behalf of the secured parties thereunder.


 


“Interest
Election Request” means a request by the Borrower to convert or continue a Revolving Borrowing in accordance with Section 2.08.


 


“Interest
Expense” means, for any period, total interest expense (including that attributable to Capital Lease Obligations) of
the Borrower and its Restricted Subsidiaries for such period with respect to all outstanding Indebtedness of the Borrower and its
Restricted Subsidiaries (including all commissions, discounts and other fees and charges owed with respect to letters of credit
and bankers’ acceptances and net costs under Swap Agreements in respect of interest rates to the extent such net costs are
allocable to such period in accordance with GAAP), calculated on a consolidated basis for the Borrower and its Restricted Subsidiaries
for such period in accordance with GAAP.


 


“Interest
Payment Date” means (a) with respect to any ABR Loan, the first Business Day of each calendar month, the date of
any prepayment due to acceleration pursuant to Article VII, and the Maturity Date and (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part (and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period
that occurs at intervals of three months’ duration after the first day of such Interest Period), the date of any prepayment
due to acceleration pursuant to Article VII, and the Maturity Date.


 


“Interest
Period” means, with respect to any Eurodollar Borrowing, the period commencing on the date of such Eurodollar Borrowing
and ending on the numerically corresponding day in the calendar month that is one, two, three or six months (or, with the consent
of each applicable Lender, twelve months) thereafter, as the Borrower may elect; provided, that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on
the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the
last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall
be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation
of such Borrowing.


 


“Interpolated
Rate” means, at any time, for any Interest Period, the rate per annum (rounded to the same number of decimal places as
the LIBO Screen Rate) determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest
error) to be equal to the rate that results from interpolating on a linear basis between: (a) the LIBO Screen Rate for the longest
period (for which the LIBO Screen Rate is available) that is shorter than the Impacted Interest Period and (b) the LIBO Screen
Rate for the shortest period (for which the LIBO Screen Rate is available) that exceeds the Impacted Interest Period, in each case,
at such time; provided, that, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes
of this Agreement.


 




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“Inventory”
has the meaning assigned to such term in the Security Agreement.


 


“IRS”
means the United States Internal Revenue Service.


 


“Issuing Bank”
means (i) JPMorgan Chase Bank, N.A., in its capacity as an issuer of Letters of Credit, and its successors in such capacity
as provided in Section 2.06(i) and (ii) each other Lender that agrees to be an Issuing Bank hereunder. Each Issuing
Bank, in its capacity as an Issuing Bank, may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates
of such Issuing Bank, in which case the term “Issuing Bank” shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate. At any time there is more than one Issuing Bank, all singular references to the Issuing Bank
shall mean any Issuing Bank, either Issuing Bank, each Issuing Bank, the Issuing Bank that has issued the applicable Letter of
Credit, or both (or all) Issuing Banks, as the context may require.


 


“Joinder Agreement”
means a Joinder Agreement in substantially the form of Exhibit E and/or such other joinder form acceptable to the Administrative
Agent in its sole discretion.


 


“JPMCB”
means JPMorgan Chase Bank, N.A., a national banking association, in its individual capacity, and its successors.


 


“LC Collateral
Account” has the meaning assigned to such term in Section 2.06(j).


 


“LC Disbursement”
means a payment made by an Issuing Bank pursuant to a Letter of Credit.


 


“LC Exposure”
means, with respect to an Issuing Bank at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters
of Credit issued by such Issuing Bank plus (b) the aggregate amount of all LC Disbursements made by such Issuing Bank that
have not yet been reimbursed by or on behalf of the Borrower.


 


“Lenders”
means the Persons listed on the Revolving Line Portion Schedule and any other Person that shall have become a Lender hereunder
pursuant to an Assignment and Assumption or otherwise, other than any such Person that ceases to be a Lender hereunder pursuant
to an Assignment and Assumption or otherwise. Unless the context otherwise requires, the term “Lenders” includes each
Issuing Bank.


 


“Letters of
Credit” means the letters of credit issued pursuant to this Agreement, and the term “Letter of Credit” means
any one of them or each of them singularly, as the context may require.


 


“Letter of
Credit Agreement” has the meaning assigned to it in Section 2.06(b).


 


“LIBO Rate”
means, with respect to any Eurodollar Borrowing for any applicable Interest Period or for any ABR Borrowing, the LIBO Screen Rate
at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period; provided
that, if the LIBO Screen Rate shall not be available at such time for such Interest Period (an “Impacted Interest Period”),
then the LIBO Rate shall be the Interpolated Rate, subject to Section 2.14 in the event that the Administrative Agent shall
conclude that it shall not be possible to determine such Interpolated Rate (which conclusion shall be conclusive and binding absent
manifest error). Notwithstanding the above, to the extent that “LIBO Rate” or “Adjusted LIBO Rate” is used
in connection with an ABR Borrowing, such rate shall be determined as modified by the definition of Alternate Base Rate.


 




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“LIBO Screen
Rate” means, for any day and time, with respect to any Eurodollar Borrowing for any Interest Period or for any ABR Borrowing,
the London interbank offered rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration
of such rate) for dollars for a period equal in length to such Interest Period as displayed on such day and time on pages LIBOR01
or LIBOR02 of the Reuters screen that displays such rate (or, in the event such rate does not appear on a Reuters page or screen,
on any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information
service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion); provided
that if the LIBO Screen Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of
this Agreement.


 


“Lien”
means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease
or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating
to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect
to such securities.


 


“LLC”
means any Person that is a limited liability company under the laws of its jurisdiction of formation.


 


“Loan Documents”
means, collectively, this Agreement, any promissory notes issued pursuant to this Agreement, any Letter of Credit Agreement, the
Collateral Documents, the Loan Guaranty, the Intercreditor Agreement and all other agreements, instruments, documents and certificates
identified in Section 4.01 executed and delivered to, or in favor of, the Administrative Agent or any Lender and including
all other pledges, powers of attorney, consents, assignments, contracts, notices, letter of credit agreements, letter of credit
applications and any agreements between the Borrower and an Issuing Bank regarding the respective rights and obligations between
the Borrower and such Issuing Bank in connection with the issuance by such Issuing Bank of Letters of Credit, and all other written
matter whether heretofore, now or hereafter executed by or on behalf of any Loan Party, or any employee of any Loan Party, and
delivered to the Administrative Agent or any Lender in connection with this Agreement or the transactions contemplated hereby.
Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules
thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to this Agreement or such
Loan Document as the same may be in effect at any and all times such reference becomes operative.


 


“Loan Guarantor”
means the Borrower’s Domestic Subsidiaries other than Excluded Subsidiaries, provided that in any event each guarantor
under the Term Loan Facility shall be a Loan Guarantor hereunder.


 


“Loan Guaranty”
means Article X of this Agreement.


 


“Loan Parties”
means, collectively, the Borrower, the Loan Guarantors and any other Person who becomes a party to this Agreement pursuant to a
Joinder Agreement and their successors and assigns.


 


“Loans”
means the loans and advances (if any) made by the Lenders pursuant to this Agreement.


 




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“Material
Adverse Effect” means a material adverse effect on (a) the business, assets, operations, prospects or condition,
financial or otherwise, of the Borrower and the Restricted Subsidiaries taken as a whole, (b) the ability of any Loan Party
to perform any of its obligations under the Loan Documents to which it is a party, (c) the Collateral or the Administrative
Agent’s Liens (on behalf of itself and other Secured Parties) on the Collateral or the priority of such Liens, or (d) the
rights of or benefits available to the Administrative Agent, the Issuing Bank or the Lenders under any of the Loan Documents.


 


“Material
Indebtedness” means Indebtedness (other than the Loans and Letters of Credit), or obligations in respect of one or more
Swap Agreements, of any one or more of the Borrower and its Restricted Subsidiaries in an aggregate principal amount exceeding
$20,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower
or any Restricted Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that the Borrower or such Restricted Subsidiary would be required to pay if such Swap Agreement were
terminated at such time.


 


“Material
Subsidiary” means each Domestic Subsidiary (other than Unrestricted Subsidiaries) (i) which, as of the most recent fiscal
quarter of the Borrower, for the period of four consecutive fiscal quarters then ended, for which financial statements have been
delivered pursuant to Section 5.01, contributed greater than five percent (5%) of EBITDA for such period or (ii) which contributed
greater than five percent (5%) of Total Assets as of such date; provided that, if at any time the aggregate amount of EBITDA
or Total Assets attributable to all Domestic Subsidiaries that are not Material Domestic Subsidiaries exceeds ten percent (10%)
of EBITDA of the Borrower and its Restricted Subsidiaries for any such period or ten percent (10%) of Total Assets of the Borrower
and its Restricted Subsidiaries as of the end of any such fiscal quarter, the Borrower (or, in the event the Borrower has failed
to do so within forty-five (45) days, the Administrative Agent) shall designate sufficient Domestic Subsidiaries (other than Unrestricted
Subsidiaries) as “Material Domestic Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall
for all purposes of this Agreement constitute Material Subsidiaries.


 


“Maturity
Date” means July 16, 2019.


 


“Maximum Liability”
has the meaning assigned to such term in Section 10.10.


 


“Maximum Rate”
has the meaning assigned to such term in Section 9.17.


 


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


 


“Mortgage”
means each 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 other Secured Parties, on real property of a Loan Party, including any amendment,
restatement, modification or supplement thereto.


 


“Mortgage
Instruments” means such title reports, ALTA title insurance policies (with endorsements), evidence of zoning compliance,
property insurance, flood certifications and flood insurance (and, if applicable FEMA form acknowledgements of insurance), opinions
of counsel, ALTA surveys, appraisals, environmental assessments and reports, mortgage tax affidavits and declarations and other
similar information and related certifications as are requested by, and in form and substance reasonably acceptable to, the Administrative
Agent from time to time.


 


“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.


 




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“Net Income”
means, for any period, the consolidated net income (or loss) of the Borrower and its Restricted Subsidiaries, determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary or is merged into or consolidated with the Borrower or any of its Subsidiaries, (b) the
income (or deficit) of any Person (other than a Restricted Subsidiary) in which the Borrower or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is actually received by the Borrower or such Subsidiary in the form
of cash dividends or similar cash distributions and (c) the undistributed earnings of any Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any
contractual obligation (other than under any Loan Document) or Requirement of Law applicable to such Subsidiary.


 


“Net Orderly
Liquidation Value” means, with respect to Inventory of any Person, the orderly liquidation value thereof as determined
in a manner acceptable to the Administrative Agent by an appraiser acceptable to the Administrative Agent, net of all costs of
liquidation thereof.


 


“Net Proceeds”
means, with respect to any event, (a) the cash proceeds received in respect of such event including (i) any cash received
in respect of any non-cash proceeds (including any cash payments received by way of deferred payment of principal pursuant to a
note or installment receivable or purchase price adjustment receivable or otherwise, but excluding any interest payments), but
only as and when received, (ii) in the case of a casualty, insurance proceeds and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, minus (b) the sum of (i) all reasonable
fees and out-of-pocket expenses paid to third parties (other than Affiliates) in connection with such event, (ii) in the case
of a sale, transfer or other disposition of an asset (including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be made as a result of such event to repay Indebtedness
(other than Loans) secured by such asset or otherwise subject to mandatory prepayment as a result of such event and (iii) the
amount of all taxes paid (or reasonably estimated to be payable) and the amount of any reserves established to fund contingent
liabilities reasonably estimated to be payable, in each case during the year that such event occurred or the next succeeding year
and that are directly attributable to such event (as determined reasonably and in good faith by a Financial Officer).


 


“Non-Consenting
Lender” has the meaning assigned to such term in Section 9.02(d).


 


“NYFRB”
means the Federal Reserve Bank of New York.


 


“NYFRB Rate”
means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding
Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided
that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for
a federal funds transaction quoted at 11:00 a.m., New York City time, on such day received by the Administrative Agent from a federal
funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined
would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.


 


“Obligated
Party” has the meaning assigned to such term in Section 10.02.


 




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“Obligations”
means all unpaid principal of and accrued and unpaid interest on the Loans, all LC Exposures, all accrued and unpaid fees and all
expenses, reimbursements, indemnities and other obligations and indebtedness (including interest and fees accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding),
obligations and liabilities of any of the Borrower and its Subsidiaries to any of the Lenders, the Administrative Agent, the Issuing
Banks or any indemnified party, individually or collectively, existing on the Effective Date or arising thereafter, direct or indirect,
joint or several, absolute or contingent, matured or unmatured, liquidated or unliquidated, secured or unsecured, arising by contract,
operation of law or otherwise, arising or incurred under this Agreement or any of the other Loan Documents or in respect of any
of the Loans made or reimbursement or other obligations incurred or any of the Letters of Credit or other instruments at any time
evidencing any thereof.


 


“Off-Balance
Sheet Liability” of a Person means (a) any repurchase obligation or liability of such Person with respect to accounts
or notes receivable sold by such Person, (b) any indebtedness, liability or obligation under any so-called “synthetic
lease” transaction entered into by such Person, or (c) any indebtedness, liability or obligation arising with respect
to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheets of such Person (other than operating leases).


 


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


 


“Other Taxes”
means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment
made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security
interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed
with respect to an assignment (other than an assignment made pursuant to Section 2.19).


 


“Overnight
Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar borrowings
by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth
on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding
rate.


 


“Parent”
means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.


 


“Participant”
has the meaning assigned to such term in Section 9.04(c).


 


“Participant
Register” has the meaning assigned to such term in Section 9.04(c).


 


“Payment Condition ̈
means, with respect to any proposed action on any date, a condition that is satisfied if (a) after giving effect to such proposed
action as if it occurred on the first day of the Pro Forma Period, the pro forma Excess Availability shall be greater than 25.0%
of the Aggregate Revolving Line Portions at all times during the Pro Forma Period or (b) after giving effect to such proposed action
as if it occurred on the first day of the Pro Forma Period, both (i) the pro forma Excess Availability shall be greater than 17.5%
of the Aggregate Revolving Line Portions at all times during the Pro Forma Period and (ii) the Fixed Charge Coverage Ratio, computed
on a pro forma basis after giving effect to the Proposed Action, for the period of four consecutive fiscal quarters ending on the
most recent fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01,
shall be greater than 1.10 to 1.00.


 




    	24



     


    

 


“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.


 


“Permitted
Acquisition” means any Acquisition by any Loan Party in a transaction that satisfies each of the following requirements:


 


(a)          such
Acquisition is not a Hostile Acquisition;


 


(b)          the
business acquired in connection with such Acquisition is not engaged, directly or indirectly, in any line of business other than
the businesses in which the Loan Parties are engaged on the Effective Date and any business activities that are substantially similar,
related, or incidental thereto;


 


(c)          both
before and after giving effect to such Acquisition and the Loans (if any) requested to be made in connection therewith, each of
the representations and warranties in the Loan Documents is true and correct in all material respects (it being understood and
agreed that any such representation or warranty which relates to a specified prior date shall be required to be true and correct
in all material respects only as of such specified prior date, and that any such representation or warranty which is subject to
any materiality qualifier shall be required to be true and correct in all respects) and no Default exists, will exist, or would
result therefrom;


 


(d)          as
soon as available, but not less than (i) thirty (30) days prior to such Acquisition, the Borrower has provided the Administrative
Agent (A) notice of such Acquisition and (B) a copy of all business and financial information reasonably requested by
the Administrative Agent including pro forma financial statements, statements of cash flow, and Availability projections and
(ii) five (5) Business Days prior to such Acquisition, the Borrower has provided the Administrative Agent a near-final draft of
the purchase agreement for such Acquisition;


 


(e)          if
the Accounts and Inventory acquired in connection with such Acquisition are proposed to be included in the determination of the
Borrowing Base, the Administrative Agent shall have conducted a field examination of such Accounts and Inventory and an appraisal
of such Inventory, the results of which shall be reasonably satisfactory to the Administrative Agent;


 


(f)           if
such Acquisition is an acquisition of Equity Interests, such Acquisition will not result in any violation of Regulation U;


 


(g)          if
such Acquisition involves a merger or a consolidation involving the Borrower or any other Loan Party, the Borrower or such Loan
Party, as applicable, shall be the surviving entity;


 


(h)          the
Borrower shall certify to the Administrative Agent and the Lenders (and provide the Administrative Agent and the Lenders with a
pro forma calculation in form and substance reasonably satisfactory to the Administrative Agent and the Lenders) that, after
giving effect to the completion of such Acquisition, the Payment Condition shall be satisfied with respect to such Acquisition;


 


(i)          all
actions required to be taken with respect to any newly acquired or formed Wholly-Owned Subsidiary of the Borrower or a Loan Party,
as applicable, required under Section 5.13 shall have been taken; and


 




    	25



     


    

 


(j)           the
Borrower shall have delivered to the Administrative Agent the final executed material documentation relating to such Acquisition
promptly, upon the request therefor from the Administrative Agent, following the consummation of such Acquisition;


 


provided that, notwithstanding the
foregoing, a Drug Acquisition by any Loan Party shall constitute a “Permitted Acquisition” if it satisfies the requirements
set forth in clauses (b), (c), (e), (h), (i) and (j) of this definition.


 


“Permitted
Discretion” means a determination made in good faith and in the exercise of reasonable (from the perspective of a secured
asset-based lender) business judgment.


 


“Permitted
Encumbrances” means:


 


(a)          Liens
imposed by law for Taxes that are not yet due or are being contested in compliance with Section 5.04;


 


(b)          carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in
the ordinary course of business and securing obligations that are not overdue by more than thirty (30) days or are being contested
in compliance with Section 5.04;


 


(c)          pledges
and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and
other social security laws or regulations;


 


(d)          deposits
to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of business;


 


(e)          judgment
Liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article VII; and


 


(f)          easements,
zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of
business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;


 


provided that
the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness, except with respect to clause (e)
above.


 


“Permitted
Investments” means:


 


(a)          direct
obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the U.S. (or by any
agency thereof to the extent such obligations are backed by the full faith and credit of the U.S.), in each case maturing within
one year from the date of acquisition thereof;


 


(b)          marketable
direct obligations issued by any state of the U.S. or any political subdivision of any such state or any public instrumentality
thereof, in each case maturing within one year after the date of acquisition thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s;


 




    	26



     


    

 


(c)          investments
in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from S&P or from Moody’s;


 


(d)          investments
in certificates of deposit, banker’s acceptances and time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the U.S. or any State thereof which has a combined capital and surplus and
undivided profits of not less than $500,000,000;


 


(e)          fully
collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a)
above and entered into with a financial institution satisfying the criteria described in clause (c) above; and


 


(f)           money
market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment
Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least
$5,000,000,000.


 


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


 


“Plan”
means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate
is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer”
as defined in Section 3(5) of ERISA.


 


“Plan Asset
Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time
to time.


 


“Prepayment
Event” means:


 


(a)          any
sale, transfer or other disposition (including pursuant to a sale and leaseback transaction) of any property or asset of any Loan
Party constituting ABL First Priority Collateral, other than dispositions described in clauses (a), (b), (c) or (d) of Section 6.05;
or


 


(b)          any
casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any
property or asset of any Loan Party constituting ABL First Priority Collateral.


 


“Prime Rate”
means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street
Journal ceases to quote such rate, the highest per annum interest rate published by the Board in Federal Reserve Statistical Release
H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any
similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Board (as determined by the
Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced
or quoted as being effective.


 


“Pro Forma
Period” means the period commencing thirty (30) days prior to the date of any proposed action and ending on the date
of such proposed action.


 


“Projections”
has the meaning assigned to such term in Section 5.01(e).


 




    	27



     


    

 


“PTE”
means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from
time to time.


 


“Public-Sider”
means any representative of a Lender that does not want to receive material non-public information within the meaning of federal
and state securities laws.


 


“Qualified
ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000
at the time the relevant Loan Guaranty or grant of the relevant security interest becomes or would become effective with respect
to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity
Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an “eligible contract participant”
at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.


 


“Recipient”
means (a) the Administrative Agent, (b) any Lender and (c) any Issuing Bank, or any of the foregoing or any combination
thereof (as the context requires).


 


“Refinance
Indebtedness” has the meaning assigned to such term in Section 6.01(g).


 


“Register”
has the meaning assigned to such term in Section 9.04.


 


“Related Parties”
means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person’s Affiliates.


 


“Release”
means any releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, migrating,
disposing or dumping of any substance into the environment.


 


“Report”
means reports prepared by the Administrative Agent or another Person showing the results of appraisals, field examinations or audits
pertaining to the assets of the Loan Parties from information furnished by or on behalf of the Borrower, after the Administrative
Agent has exercised its rights of inspection pursuant to this Agreement, which Reports may be distributed to the Lenders by the
Administrative Agent.


 


“Required
Lenders” means, at any time, Lenders (other than Defaulting Lenders) having Credit Exposures and unused Revolving Line
Portions representing more than 50% of the sum of the Aggregate Credit Exposure and unused Revolving Line Portions at such time
(excluding in each case that of any Defaulting Lenders); provided that, as long as there is more than one Lender, Required
Lenders shall mean at least two (2) Lenders.


 


“Requirement
of Law” means, with respect to any Person, (a) the charter, articles or certificate of organization or incorporation
and bylaws or other organizational or governing documents of such Person and (b) any statute, law (including common law),
treaty, rule, regulation, code, ordinance, order, decree, writ, judgment, injunction or determination of any arbitrator or court
or other Governmental Authority (including Environmental Laws), in each case applicable to or binding upon such Person or any of
its property or to which such Person or any of its property is subject.


 




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“Reserves”
means any and all reserves which the Administrative Agent deems necessary, in its Permitted Discretion, to maintain (including,
without limitation but subject to the Administrative Agent’s Permitted Discretion, an availability reserve, reserves for
accrued and unpaid interest on the Secured Obligations, Banking Services Reserves, reserves for rent at locations leased by any
Loan Party and for consignee’s, warehousemen’s and bailee’s charges, reserves for dilution of Accounts, reserves
for Inventory shrinkage, reserves for customs charges and shipping charges related to any Inventory in transit, reserves for Swap
Agreement Obligations, reserves for contingent liabilities of any Loan Party, reserves for uninsured losses of any Loan Party,
reserves for uninsured, underinsured, un-indemnified or under-indemnified liabilities or potential liabilities with respect to
any litigation and reserves for taxes, fees, assessments, and other governmental charges) with respect to the Collateral or any
Loan Party; provided that, notwithstanding the foregoing, the Administrative Agent may not implement any new reserves or
increase the amount of any existing Reserves without reasonable prior notice to the Borrower.


 


“Responsible
Officer” means the chief executive officer, Financial Officer or other executive officer of the Borrower.


 


“Restricted
Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any
Equity Interests 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 such Subsidiary or any option, warrant or other right to acquire any such Equity Interests
in the Borrower or such Subsidiary.


 


“Restricted
Subsidiary” means any Subsidiary of the Borrower other than an Unrestricted Subsidiary.


 


“Revolving
Line Portion Schedule” means the Schedule attached hereto identified as such.


 


“Revolving
Line Portion” means, with respect to each Lender, the obligation, if any, of such Lender to consider requests to make
Revolving Loans hereunder, expressed as an amount representing the maximum possible aggregate amount of such Lender’s Credit
Exposure hereunder, as such obligation may be reduced from time to time pursuant to (a) Section 2.09 and (b) assignments
by or to such Lender pursuant to Section 9.04. The initial amount of each Lender’s Revolving Line Portion is
set forth on the Revolving Line Portion Schedule, or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Revolving Line Portion, as applicable. The initial aggregate amount of the Lenders’ Revolving Line Portions
is $150,000,000.


 


“Revolving
Loan” means a Loan made pursuant to Section 2.01.


 


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


 


“Sale and
Leaseback Transaction” has the meaning assigned to such term in Section 6.06.


 


“Sanctioned
Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at
the time of this Agreement, Crimea, Cuba, Iran, North Korea and Syria).


 


“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the
Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security
Council, the European Union, any European Union member state or Her Majesty’s Treasury of the United Kingdom, (b) any
Person organized or resident in a Sanctioned Country or (c) any Person owned or controlled by any such Person or Persons described
in the foregoing clauses (a) or (b).


 




    	29



     


    

 


“Sanctions”
means all 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 the Office of Foreign Assets Control of the U.S. Department of the Treasury or the
U.S. Department of State or (b) the United Nations Security Council, the European Union, any European Union member state or Her
Majesty’s Treasury of the United Kingdom.


 


“SEC”
means the Securities and Exchange Commission of the U.S.


 


“Secured Obligations”
means all Obligations, together with all (i) Banking Services Obligations and (ii) Swap Agreement Obligations owing to
one or more Lenders or their respective Affiliates; provided, however, that the definition of “Secured Obligations”
shall not create any guarantee by any Loan Guarantor of (or grant of security interest by any Loan Guarantor to support, as applicable)
any Excluded Swap Obligations of such Loan Guarantor for purposes of determining any obligations of any Loan Guarantor.


 


“Secured Parties”
means (a) the Administrative Agent, (b) the Lenders, (c) the Issuing Bank, (d) each provider of Banking Services,
to the extent the Banking Services Obligations in respect thereof constitute Secured Obligations, (e) each counterparty to
any Swap Agreement, to the extent the obligations thereunder constitute Secured Obligations, (f) the beneficiaries of each
indemnification obligation undertaken by any Loan Party under any Loan Document, and (g) the successors and assigns of each
of the foregoing.


 


“Security
Agreement” means (a) that certain Pledge and Security Agreement (including any and all supplements thereto), dated as
of April 17, 2014, among the Loan Parties and the Administrative Agent, for the benefit of the Administrative Agent and the other
Secured Parties, and (b) any other pledge or security agreement entered into, after April 17, 2014 by any other Loan Party (as
required by this Agreement or any other Loan Document) or any other Person for the benefit of the Administrative Agent and the
other Secured Parties, in each case, as the same may be amended, restated, supplemented or otherwise modified from time to time.
All singular references to the Security Agreement shall mean the agreement referenced in clause (a) of this definition unless
the context may otherwise require.


 


“Special Purpose
Entity” means a bankruptcy remote, special purpose entity organized under the laws of any state of the United States
of America that satisfied, as of the date of its formation, the special purpose entity criteria published by S&P and in effect
as of such date.


 


“Statements”
has the meaning assigned to such term in Section 2.18(f).


 


“Statutory
Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator
of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency
funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages
shall include those imposed pursuant to such Regulation D of the Board. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may
be available from time to time to any Lender under such Regulation D of the Board or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.


 


“Subordinated
Indebtedness” of a Person means any Indebtedness of such Person the payment of which is subordinated to payment of the
Secured Obligations to the written satisfaction of the Administrative Agent.


 




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“subsidiary”
means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated
financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation,
limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.


 


“Subsidiary”
means any direct or indirect subsidiary of the Borrower or a Loan Party, as applicable.


 


“Swap Agreement”
means any agreement with respect to any swap, forward, spot, future, credit default or derivative transaction or option or similar
agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities,
or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction
or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on
account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries
shall be a Swap Agreement.


 


“Swap Agreement
Obligations” of a Loan Party means any and all obligations of such Loan Party, whether absolute or contingent and howsoever
and whensoever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions
therefor), under (a) any and all Swap Agreements permitted hereunder with a Lender or an Affiliate of a Lender, and (b) any
and all cancellations, buy backs, reversals, terminations or assignments of any such Swap Agreement transaction.


 


“Swap Obligation”
means, with respect to any Loan Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes
a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated
thereunder.


 


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


 


“Term Loan”
means the “Loans” as defined in the Term Loan Facility.


 


“Term Loan
Administrative Agent” means JPMorgan Chase Bank, N.A., as the “Administrative Agent” under the Term Loan
Facility and any successor thereto.


 


“Term Loan
Agreement” means the Loan Agreement, dated as of April 17, 2014, among the Borrower, the various lenders from time to
time party thereto and the Term Loan Administrative Agent (as such agreement may be amended, restated, supplemented, refinanced,
replaced, extended or otherwise modified from time to time).


 


“Term Loan
Facility” means the loan facilities evidenced by the Term Loan Agreement.


 


“Term Loan
Documents” means any agreement or instrument governing or evidencing the Term Loans.


 




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“Term Loan
Obligations Payment Date” has the meaning assigned to such term in the Intercreditor Agreement.


 


“Term Loan
Priority Collateral” has the meaning assigned to such term in the Intercreditor Agreement.


 


“Term Loan
Representative” has the meaning assigned to such term in the Intercreditor Agreement.


 


“Total Assets”
means, as of the date of any determination thereof, total assets of the Borrower and its Restricted Subsidiaries calculated in
accordance with GAAP on a consolidated basis as of such date.


 


“Transactions”
means the execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents, the borrowing of
Loans and other credit extensions, the use of the proceeds thereof and the issuance of Letters of Credit hereunder.


 


“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.


 


“UCC”
means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which
are required to be applied in connection with the issue of perfection of security interests.


 


“Unliquidated
Obligations” means, at any time, any Secured Obligations (or portion thereof) that are contingent in nature or unliquidated
at such time, including any Secured Obligation that is: (i) an obligation to reimburse a bank for drawings not yet made under
a letter of credit issued by it; (ii) any other obligation (including any guarantee) that is contingent in nature at such
time; or (iii) an obligation to provide collateral to secure any of the foregoing types of obligations.


 


“Unrestricted
Subsidiary” means (a) any Subsidiaries of the Borrower designated by the board of directors of the Borrower as an “Unrestricted
Subsidiary” pursuant to Section 5.14, and (b) any Subsidiary of any of the foregoing.


 


“U.S.”
means the United States of America.


 


“U.S. Person”
means a “United States person” within the meaning of Section 7701(a)(30) of the Code.


 


“U.S. Tax
Compliance Certificate” has the meaning assigned to such term in Section 2.17(f)(ii)(B)(3).


 


“USA PATRIOT
Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001.


 


“Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.


 




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“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.


 


SECTION 1.02          Classification of Loans and Borrowings.
For purposes of this Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan”).
Borrowings also may be classified and referred to by Type (e.g., a “Eurodollar Borrowing”).


 


SECTION 1.03          Terms Generally. The definitions
of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes”
and “including” shall be deemed to be followed by the phrase “without limitation”. The word “law”
shall be construed as referring to all statutes, rules, regulations, codes and other laws (including official rulings and interpretations
thereunder having the force of law or with which affected Persons customarily comply) and all judgments, orders and decrees of
all Governmental Authorities. The word “will” shall be construed to have the same meaning and effect as the word “shall”.
Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, supplemented
or otherwise modified (subject to any restrictions on such amendments, restatements, supplements or modifications set forth herein),
(b) any definition of or reference to any statute, rule or regulation shall be construed as referring thereto as from time
to time amended, supplemented or otherwise modified (including by succession of comparable successor laws), (c) any reference
herein to any Person shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignments
set forth herein) and, in the case of any Governmental Authority, any other Governmental Authority that shall have succeeded to
any or all functions thereof, (d) the words “herein”, “hereof” and “hereunder”, and words
of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (e) all
references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement, (f) any reference in any definition to the phrase “at any time” or “for
any period” shall refer to the same time or period for all calculations or determinations within such definition, and (g) the
words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.


 


SECTION 1.04          Accounting
Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if after the Effective
Date the Borrower migrates to IFRS or there occurs any change in GAAP or in the application thereof on the operation of any provision
hereof and the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate
the effect of such migration to IFRS or change in GAAP or in the application thereof (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such migration to IFRS or change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately before such migration or change shall have become effective
until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision
contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts
and ratios referred to herein shall be made (i) without giving effect to any election under Financial Accounting Standards
Board Accounting Standards Codification 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 any Loan Party, the Borrower or any Subsidiary
at “fair value”, as defined therein, (ii) without giving effect to any treatment of Indebtedness in respect of
convertible debt instruments under Financial Accounting Standards Board Accounting Standards Codification 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 and (iii) without giving effect to any change in accounting for leases pursuant to GAAP including but not limited
to those resulting from the implementation of Financial Accounting Standards Board ASU No. 2016-02, Leases (Topic 842), in each
case to the extent any such adoption would require treating any lease (or similar arrangement conveying the right to use) as a
capital lease where such lease (or similar arrangement) would not have been required to be so treated under GAAP as in effect on
December 31, 2015.


 




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SECTION 1.05          Status
of Obligations. In the event that the Borrower or any other Loan Party shall at any time issue
or have outstanding any Subordinated Indebtedness, the Borrower shall take or cause such other Loan Party to take all such actions
as shall be necessary to cause the Secured Obligations to constitute senior indebtedness (however denominated) in respect of such
Subordinated Indebtedness and to enable the Administrative Agent and the Lenders to have and exercise any payment blockage or other
remedies available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness.
Without limiting the foregoing, the Secured Obligations are hereby designated as “senior indebtedness” and as “designated
senior indebtedness” and words of similar import under and in respect of any indenture or other agreement or instrument under
which such Subordinated Indebtedness is outstanding and are further given all such other designations as shall be required under
the terms of any such Subordinated Indebtedness in order that the Lenders may have and exercise any payment blockage or other remedies
available or potentially available to holders of senior indebtedness under the terms of such Subordinated Indebtedness.


 


SECTION 1.06          Interest
Rates; LIBOR Notification. The interest rate on Eurodollar Loans is determined by reference to
the LIBO Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent
the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017,
the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing
banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator,
the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that
commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference
rate upon which to determine the interest rate on Eurodollar Loans. In light of this eventuality, public and private sector industry
initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered
rate. In the event that the London interbank offered rate is no longer available or in certain other circumstances as set forth
in Section 2.14(c) of this Agreement, such Section 2.14(c) provides a mechanism for determining an alternative rate
of interest. The Administrative Agent will notify the Borrower, pursuant to Section 2.14, in advance of any change to the
reference rate upon which the interest rate on Eurodollar Loans is based. However, the Administrative Agent does not warrant or
accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter
related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any
alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics
of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 2.14(c),
will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as
did the London interbank offered rate prior to its discontinuance or unavailability.


 




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SECTION 1.07          Amendment
and Restatement of the Existing ABL Credit Agreement. The parties to this Agreement agree that,
on the Effective Date, the terms and provisions of the Existing ABL Credit Agreement shall be and hereby are amended, superseded
and restated in their entirety by the terms and provisions of this Agreement. This Agreement is not intended to and shall not constitute
a novation. All loans made and obligations incurred under the Existing ABL Credit Agreement which are outstanding on the Effective
Date shall continue as Loans and Secured Obligations under (and shall be governed by the terms of) this Agreement and the other
Loan Documents. Without limiting the foregoing, upon the effectiveness hereof: (a) all references in the “Loan Documents”
(as defined in the Existing ABL Credit Agreement) to the “Administrative Agent,” the “Credit Agreement”
and the “Loan Documents” shall be deemed to refer to the Administrative Agent, this Agreement and the Loan Documents,
(b) all obligations constituting “Obligations” with any Lender or any Affiliate of any Lender which are outstanding
on the Effective Date shall continue as Obligations under this Agreement and the other Loan Documents, (c) the liens and security
interests in favor of the Administrative Agent for the benefit of the Secured Parties securing payment of the Secured Obligations
(and all filings with any Governmental Authority in connection therewith) are in all respects continuing and in full force and
effect with respect to all Secured Obligations and (d) each of the Loan Parties reaffirms the terms and conditions of the “Loan
Documents” (as referred to and defined in the Existing ABL Credit Agreement) executed by it, as modified and/or restated
by the “Loan Documents” (as referred to and defined herein), and acknowledges and agrees that each “Loan Document”
(as referred to and defined in the Existing ABL Credit Agreement) executed by it, as modified and/or restated by the “Loan
Documents” (as referred to and defined herein), remains in full force and effect and is hereby ratified, reaffirmed and confirmed.


 


SECTION 1.08         UNCOMMITTED
CREDIT FACILITY. THE OFFERING OF THIS CREDIT FACILITY CONSTITUTES AN AGREEMENT BY EACH LENDER
TO PERFORM AN ONGOING CREDIT REVIEW OF THE BORROWER AND THE OTHER LOAN PARTIES TO ENABLE SUCH LENDER TO RESPOND TO ANY REQUEST
FOR CREDIT THAT THE BORROWER MAY MAKE. THIS CREDIT FACILITY IS NOT A COMMITMENT AND DOES NOT IN ANY WAY OBLIGATE ANY LENDER TO
MAKE CREDIT EXTENSIONS OR GRANT ANY CREDIT. EACH DECISION TO MAKE AN ADVANCE HEREUNDER IS ENTIRELY DISCRETIONARY: IF ANY LENDER
DECIDES TO MAKE AN ADVANCE UNDER THIS CREDIT FACILITY, SUCH LENDER MAY STILL USE ITS SOLE AND ABSOLUTE DISCRETION TO MAKE OR DENY
ANY SUBSEQUENT ADVANCE UNDER THIS CREDIT FACILITY. THIS CREDIT FACILITY IS ISSUED SUBJECT TO SUCH FACTORS AS EACH LENDER MAY FIND
RELEVANT AT THE TIME OF THE REQUEST, INCLUDING, WITHOUT LIMITATION, FINANCIAL MARKET CONDITIONS REMAINING THE SAME AS AT PRESENT;
EACH LENDER IN ITS SOLE DISCRETION CONTINUING TO BE SATISFIED WITH THE BORROWER’S AND EACH OTHER LOAN PARTIES’ FINANCIAL
CONDITION AND ECONOMIC PROSPECTS; AND THE BORROWER’S MAINTENANCE OF A SATISFACTORY RELATIONSHIP WITH THE APPLICABLE LENDER.
EACH LENDER MAY IN ITS SOLE DISCRETION AGREE TO EXTEND CREDIT HEREUNDER NOTWITHSTANDING THE WILLINGNESS OR UNWILLINGNESS OF ANY
OTHER LENDER TO EXTEND ANY SUCH CREDIT. NOTHING CONTAINED HEREIN SHALL OTHERWISE COMMIT OR OBLIGATE ANY LENDER, OR BE INTERPRETED
AS A PROMISE OR COMMITMENT BY ANY LENDER TO MAKE OR ELECT TO MAKE ANY SUCH CREDIT EXTENSION UNLESS AND UNTIL SUCH LENDER AFFIRMATIVELY
COMMITS TO SUCH REQUESTED TRANSACTION. IN NO EVENT SHALL ANY LENDER’S DECISION TO EXTEND CREDIT HEREUNDER BE CONSTRUED TO
BIND OTHER LENDERS TO EXTEND CREDIT OR TO WAIVE, LIMIT OR OTHERWISE MODIFY THE UNCOMMITTED AND DISCRETIONARY NATURE OF THE CREDIT
EXTENSIONS WHICH MAY BE MADE PURSUANT TO THIS AGREEMENT. THE BORROWER REPRESENTS AND WARRANTS TO THE ADMINISTRATIVE AGENT AND THE
LENDERS THAT THE BORROWER IS AWARE OF THE RISKS ASSOCIATED WITH CONDUCTING BUSINESS UTILIZING AN UNCOMMITTED CREDIT FACILITY. IN
NO EVENT SHALL THE COLLATERAL OR ANY PROVISION OF THIS AGREEMENT PROVIDING FOR A BORROWING BASE, AVAILABILITY, COVENANTS OR EVENTS
OF DEFAULT BE CONSTRUED TO WAIVE, LIMIT OR OTHERWISE MODIFY THE UNCOMMITTED AND DISCRETIONARY NATURE OF THE CREDIT EXTENSIONS WHICH
MAY BE MADE PURSUANT TO THIS AGREEMENT.


 




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ARTICLE II.


 


The Credits


 


SECTION 2.01          Revolving
Line Portions. Subject to the terms and conditions set forth herein, each Lender severally
agrees to consider, on an uncommitted and absolutely discretionary basis, to make Revolving Loans in dollars to the Borrower from
time to time during the Availability Period in an aggregate principal amount that will not result in (i) such Lender’s
Credit Exposure exceeding such Lender’s Revolving Line Portion or (ii) the Aggregate Credit Exposure exceeding the lesser
of (x) the Aggregate Revolving Line Portions and (y) the Borrowing Base. Within the foregoing limits and subject to the
terms and conditions set forth herein (including, without limitation, the approval of each Borrowing Request by one or more Lenders
in accordance with Section 2.03), the Borrower may borrow, prepay and reborrow Revolving Loans.


 


SECTION 2.02         Loans
and Borrowings.


 


(a)          Each
Loan shall be made as part of a Borrowing consisting of Loans of the same Type made by each Approving Lender in an amount equal
to its Applicable Funding Amount. The Lenders’ discretion to make Loans are several and no Lender shall be responsible for
any other Lender’s failure to make, or determination not to make, Loans.


 


(b)          Subject
to Section 2.14, each Revolving Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower
may request in accordance herewith. Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch
or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.14, 2.15,
2.16 and 2.17 shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise
of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.


 


(c)          At
the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $1,000,000. Borrowings of more than one Type may be outstanding at
the same time; provided that there shall not at any time be more than a total of six (6) Eurodollar Borrowings outstanding.


 


(d)          Notwithstanding
any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing
if the Interest Period requested with respect thereto would end after the Maturity Date.


 




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SECTION 2.03          Requests
and Approvals for Revolving Borrowings. To request a Revolving Borrowing, the Borrower shall
notify the Administrative Agent of such request either in writing (delivered by hand or fax) by delivering a Borrowing Request
signed by a Responsible Officer of the Borrower or through Electronic System if arrangements for doing so have been approved by
the Administrative Agent (or if an Extenuating Circumstance shall exist, by telephone) not later than (a) in the case of a Eurodollar
Borrowing, 11:00 a.m., New York City time, four (4) Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, 1:00 p.m., New York City time, one (1) Business Day before the date of the proposed Borrowing. Each
such Borrowing Request shall be irrevocable and each such telephonic Borrowing Request, if permitted, shall be confirmed immediately
upon the cessation of the Extenuating Circumstance by hand delivery, facsimile or a communication through Electronic System to
the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by a Responsible
Officer of the Borrower. Each such written (or if permitted, telephonic) Borrowing Request shall specify the following information
in compliance with Section 2.02:


 


(i)          the
aggregate amount of the requested Borrowing and a breakdown of the separate wires comprising such Borrowing;


 


(ii)         the
date of such Borrowing, which shall be a Business Day;


 


(iii)        whether
such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and


 


(iv)        in
the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated
by the definition of the term “Interest Period.”


 


If no election as to
the Type of Revolving Borrowing is specified, then the requested Revolving Borrowing shall be an ABR Borrowing. If no Interest
Period is specified with respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected
an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section,
the Administrative Agent shall advise each Lender of the details thereof and of the maximum and minimum potential Applicable Funding
Amounts of each Lender with respect to the requested Borrowing (calculated assuming such Lender is an Approving Lender). Each Lender
shall subsequently notify the Administrative Agent (pursuant to arrangements approved by the Administrative Agent) of such Lender’s
decision, in its sole discretion, to approve or disapprove the requested Borrowing, it being understood and agreed that such Lender
shall be deemed to have disapproved such requested Borrowing if the Administrative Agent has not received an approved response
from such Lender by (x) in the case of a Eurodollar Borrowing, 11:00 a.m., New York City time, three (3) Business Days before
the date of the proposed Borrowing or (y) in the case of an ABR Borrowing, 1:00 p.m., New York City time, on the date of the proposed
Borrowing (the applicable time specified in the preceding clause (x) or (y), the “Approval Deadline”).
The Administrative Agent shall promptly notify the Borrower and the Lenders of any disapproval by any Lender of a Borrowing Request
and promptly notify each Approving Lender of its Applicable Funding Amount after the Approval Deadline. No Borrowing shall be made
unless one or more Lenders have provided their approval therefor in accordance with this Section 2.03.


 


SECTION 2.04          [Intentionally
Omitted.]


 


SECTION 2.05          [Intentionally
Omitted.]


 


SECTION 2.06          Letters of Credit.


 




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(a)          General.
Subject to the terms and conditions set forth herein, the Borrower may request from any Issuing Bank the issuance of Letters of
Credit denominated in dollars as the applicant thereof for the support of its or its Subsidiaries’ obligations, in a form
reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time and from time to time during the
Availability Period and, if an Issuing Bank approves the issuance of such Letters of Credit pursuant to Section 2.06(b),
such Issuing Bank shall issue such requested Letters of Credit pursuant to this Agreement. In the event of any inconsistency between
the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank relating to any Letter of Credit,
the terms and conditions of this Agreement shall control. Notwithstanding anything herein to the contrary, no Issuing Bank shall
have any obligation hereunder to issue, and shall not issue, any Letter of Credit (i) the proceeds of which would be made available
to any Person (A) to fund any activity or business of or with any Sanctioned Person, or in any country or territory that, at the
time of such funding, is the subject of any Sanctions or (B) in any manner that would result in a violation of any Sanctions by
any party to this Agreement, (ii) if any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any Requirement of Law relating to such
Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction
over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction,
reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Effective
Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Effective Date
and which such Issuing Bank in good faith deems material to it, or (iii) if the issuance of such Letter of Credit would violate
one or more policies of such Issuing Bank applicable to letters of credit generally; provided that, notwithstanding anything herein
to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements
or directives thereunder or issued in connection therewith or in the implementation thereof, and (y) all requests, rules, guidelines,
requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or
any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III,
shall in each case be deemed not to be in effect on the Effective Date for purposes of clause (ii) above, regardless of the date
enacted, adopted, issued or implemented.


 


(b)          Notice
and Approval of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the issuance of a Letter of Credit
(or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall deliver by hand or facsimile (or
transmit by Electronic System, if arrangements for doing so have been approved by the applicable Issuing Bank) to an Issuing Bank
and the Administrative Agent (reasonably in advance of, but in any event no less than five (5) Business Days prior to, the requested
date of issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall
be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of
this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information
as shall be necessary to prepare, amend, renew or extend such Letter of Credit. The applicable Issuing Bank shall promptly thereafter
notify the Borrower and the Administrative Agent (pursuant to arrangements approved by the Administrative Agent) of such Issuing
Bank’s decision, in its sole discretion, to approve or disapprove the issuance, amendment, renewal or extension, as applicable,
of such Letter of Credit, it being understood and agreed that such Issuing Bank shall be deemed to have disapproved such issuance,
amendment, renewal or extension, as applicable, if the Administrative Agent has not received an approved response from such Issuing
Bank by 10:00 a.m., New York City time, three (3) Business Days prior to the requested date of issuance, amendment, renewal or
extension, as applicable. No Issuing Bank shall be required to issue, amend, renew or extend a Letter of Credit unless such Issuing
Bank has provided its approval therefor. Without limiting the foregoing, as a condition to any such Letter of Credit issuance,
the Borrower shall have entered into a continuing agreement (or other letter of credit agreement) for the issuance of letters of
credit and/or shall submit a letter of credit application, in each case, as required by the applicable Issuing Bank and using such
Issuing Bank’s standard form (each, a “Letter of Credit Agreement”). Without limiting the foregoing, a
Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the Credit Exposure of the applicable Issuing Bank shall not exceed its Revolving Line Portion, and
(ii) the Aggregate Credit Exposures shall not exceed the lesser of the Aggregate Revolving Line Portions and the Borrowing
Base.


 




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(c)          Expiration
Date. Each Letter of Credit shall expire (or be subject to termination or non-renewal by notice from the applicable Issuing
Bank to the beneficiary thereof) at or prior to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, including, without limitation, any
automatic renewal provision, one year after such renewal or extension) and (ii) the date that is five Business Days prior
to the Maturity Date.


 


(d)          [Reserved].


 


(e)          Reimbursement.
If any Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement
by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York City time, on
the Business Day immediately following the date that such LC Disbursement is made; provided that the Borrower may, subject
to the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed
with an ABR Revolving Borrowing in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make
such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing. Promptly following receipt by the Administrative
Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank.


 


(f)           Obligations
Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section
shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of
Credit, any Letter of Credit Agreement or this Agreement, or any term or provision therein or herein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein
being untrue or inaccurate in any respect, (iii) any payment by the applicable Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or (iv) any other
event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder.
None of the Administrative Agent, the Lenders or any Issuing Bank or any of their Related Parties shall have any liability or responsibility
by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption,
loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the applicable Issuing Bank; provided that the foregoing shall not be construed
to excuse any Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to special, indirect,
consequential or punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts
and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of the applicable Issuing Bank (as finally determined by a
court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance
of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which
appear on their face to be in substantial compliance with the terms of a Letter of Credit, an Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.


 




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(g)          Disbursement
Procedures. The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. Such Issuing Bank shall promptly notify the Administrative Agent and the
Borrower by telephone (confirmed by fax or through Electronic Systems) of such demand for payment and whether such Issuing Bank
has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall
not relieve the Borrower of its obligation to reimburse the relevant Issuing Bank with respect to any such LC Disbursement.


 


(h)          Interim
Interest. If an Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement
in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including
the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate
per annum then applicable to ABR Revolving Loans and such interest shall be due and payable on the date when such reimbursement
is payable; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e)
of this Section, then Section 2.13(d) shall apply. Interest accrued pursuant to this paragraph shall be for the account
of the applicable Issuing Bank.


 


(i)          Replacement
of an Issuing Bank.


 


(i)          Any
Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing
Bank and the successor Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid
fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b). From and after the effective
date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing
Bank under this Agreement with respect to Letters of Credit to be issued by it thereafter and (ii) references herein to the
term “Issuing Bank” shall be deemed to include such successor or the previous Issuing Bank, or to such successor and
all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing
Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement
with respect to Letters of Credit then outstanding and issued by it prior to such replacement, but shall not be requested to issue
additional Letters of Credit.


 


(ii)         Subject
to the appointment and acceptance of a successor Issuing Bank, any Issuing Bank may resign as an Issuing Bank at any time upon
thirty (30) days’ prior written notice to the Administrative Agent, the Borrower and the Lenders, in which case, such Issuing
Bank may be replaced in accordance with clause (i) of this Section 2.06(i).


 




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(j)            Cash
Collateralization. If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or any Issuing Bank demanding the deposit of cash collateral pursuant to this paragraph, the Borrower
shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing
Banks (the “LC Collateral Account”), an amount in cash equal to 105% of the amount of the aggregate LC Exposures
as of such date plus accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall
become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i)
of Article VII. The Borrower also shall deposit cash collateral in accordance with this paragraph as and to the extent
required by Sections 2.10(b), 2.11(b) or 2.20. Each such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the Secured Obligations. The Administrative Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal, over the LC Collateral Account and the Borrower hereby grants the Administrative Agent a security
interest in the LC Collateral Account and all money or other assets on deposit therein or credited thereto. Other than any interest
earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative
Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in the LC Collateral Account. Moneys in the LC Collateral Account shall be applied by the Administrative
Agent to reimburse the Issuing Banks for LC Disbursements for which they have not been reimbursed and, to the extent not so applied,
shall be held for the satisfaction of the reimbursement obligations of the Borrower for the aggregate LC Exposures at such time
or, if the maturity of the Loans has been accelerated, be applied to satisfy other Secured Obligations. If the Borrower is required
to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent
not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all such Events of Default
have been cured or waived as confirmed in writing by the Administrative Agent.


 


(k)           LC
Exposure Determination. For all purposes of this Agreement, the amount of a Letter of Credit that, by its terms or the terms
of any document related thereto, provides for one or more automatic increases in the stated amount thereof shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at the time of determination.


 


(l)            Letters
of Credit Issued for Account of Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder supports
any obligations of, or is for the account of, a Subsidiary, or states that a Subsidiary is the “account party,” “applicant,”
“customer,” “instructing party,” or the like of or for such Letter of Credit, and without derogating from
any rights of the Issuing Bank (whether arising by contract, at law, in equity or otherwise) against such Subsidiary in respect
of such Letter of Credit, the Borrower (i) shall reimburse, indemnify and compensate the applicable Issuing Bank hereunder for
such Letter of Credit (including to reimburse any and all drawings thereunder) as if such Letter of Credit had been issued solely
for the account of the Borrower and (ii) irrevocably waives any and all defenses that might otherwise be available to it as a guarantor
or surety of any or all of the obligations of such Subsidiary in respect of such Letter of Credit. The Borrower hereby acknowledges
that the issuance of such Letters of Credit for its Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s
business derives substantial benefits from the businesses of such Subsidiaries.


 


(m)           Issuing
Bank Reports to the Administrative Agent. Unless otherwise agreed by the Administrative Agent, each Issuing Bank shall, in
addition to its notification obligations set forth elsewhere in this Section, report in writing to the Administrative Agent (i)
periodic activity (for such period or recurrent periods as shall be requested by the Administrative Agent) in respect of Letters
of Credit issued by such Issuing Bank, including all issuances, extensions, amendments and renewals, all expirations and cancelations
and all disbursements and reimbursements, (ii) reasonably prior to the time that such Issuing Bank issues, amends, renews or extends
any Letter of Credit, the date of such issuance, amendment, renewal or extension, and the stated amount of the Letters of Credit
issued, amended, renewed or extended by it and outstanding after giving effect to such issuance, amendment, renewal or extension
(and whether the amounts thereof shall have changed), (iii) on each Business Day on which such Issuing Bank makes any LC Disbursement,
the date and amount of such LC Disbursement, (iv) on any Business Day on which any Borrower fails to reimburse an LC Disbursement
required to be reimbursed to such Issuing Bank on such day, the date of such failure and the amount of such LC Disbursement, and
(v) on any other Business Day, such other information as the Administrative Agent shall reasonably request as to the Letters of
Credit issued by such Issuing Bank.


 




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SECTION 2.07          Funding
of Borrowings. 


 


(a)           
If one or more Lenders have approved a Borrowing in accordance with Section 2.03, each such Lender shall make the related
Loan to be made by such Lender hereunder on the proposed date thereof by wire transfer of immediately available funds by 2:00 p.m.,
New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the
Lenders in an amount equal to such Lender’s Applicable Funding Amount. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to the Funding Account; provided that ABR
Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.06(e) shall be
remitted by the Administrative Agent to the Issuing Bank.


 


(b)           Unless
a Lender shall have disapproved (or shall be deemed to have disapproved) any Borrowing in accordance with Section 2.03 or
the Administrative Agent shall have received notice from a Lender prior to the proposed date of such Borrowing that such Lender
will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption (but shall have no obligation to), make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower each severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the NYFRB Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender’s Loan included in such Borrowing, provided, that any interest received from the Borrower by the Administrative
Agent during the period beginning when the Administrative Agent funded the Borrowing until such Lender pays such amount shall be
solely for the account of the Administrative Agent.


 


SECTION 2.08          Interest
Elections. 


  


(a)          Each
Revolving Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar
Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may
elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Revolving Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the applicable
Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate
Borrowing.


 




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(b)          To
make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election either in writing
(delivered by hand or fax) by delivering an Interest Election Request signed by a Responsible Officer of the Borrower, or through
Electronic System if arrangements for doing so have been approved by the Administrative Agent (or if an Extenuating Circumstance
shall exist, by telephone) by the time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting
a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such Interest Election
Request shall be irrevocable and each such telephonic Interest Election Request, if permitted, shall be confirmed immediately upon
the cessation of the Extenuating Circumstance by hand delivery, Electronic System or facsimile to the Administrative Agent of a
written Interest Election Request in a form approved by the Administrative Agent and signed by a Responsible Officer of the Borrower.


 


(c)          Each
written (or if permitted, telephonic) Interest Election Request (including requests submitted through Electronic System) shall
specify the following information in compliance with Section 2.02:


 


(i)          the
Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);


 


(ii)         the
effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;


 


(iii)        whether
the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and


 


(iv)        if
the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election,
which shall be a period contemplated by the definition of the term “Interest Period”.


 


If any such Interest
Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one month’s duration.


 


(d)          Promptly
following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and
of such Lender’s portion of each resulting Borrowing.


 


(e)          If
the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Revolving Borrowing prior to the
end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower,
then, so long as an Event of Default is continuing (i) no outstanding Revolving Borrowing may be converted to or continued
as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing
at the end of the Interest Period applicable thereto.


 


SECTION
2.09          Termination and Reduction of Revolving Line Portions.  


 


(a)          Unless
previously terminated, the Revolving Line Portions shall terminate on the Maturity Date.


 




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(b)          The
Borrower may at any time terminate the Revolving Line Portions upon (i) the payment in full of all outstanding Loans, together
with accrued and unpaid interest thereon and on any LC Exposure, (ii) the cancellation and return of all outstanding Letters
of Credit (or alternatively, with respect to each such Letter of Credit, the furnishing to the Administrative Agent of a cash deposit
(or at the discretion of the Administrative Agent a back up standby letter of credit reasonably satisfactory to the Administrative
Agent and the applicable Issuing Bank) in an amount equal to 105% of the aggregate LC Exposures as of such date), (iii) the
payment in full of the accrued and unpaid fees, and (iv) the payment in full of all reimbursable expenses and other Obligations,
together with accrued and unpaid interest thereon.


 


(c)          The
Borrower may from time to time reduce the Revolving Line Portions; provided that (i) each reduction of the Revolving Line
Portions shall be in an amount that is an integral multiple of $5,000,000 and not less than $10,000,000 and (ii) the Borrower
shall not terminate or reduce the Revolving Line Portions if, after giving effect to any concurrent prepayment of the Revolving
Loans in accordance with Section 2.10, the Aggregate Credit Exposure would exceed the lesser of the Aggregate Revolving
Line Portions and the Borrowing Base.


 


(d)          The
Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Line Portions under paragraph (b)
or (c) of this Section at least three (3) Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall
advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable;
provided that a notice of termination of the Revolving Line Portions delivered by the Borrower may state that such notice
is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Any termination
or reduction of the Revolving Line Portions shall be permanent. Each reduction of the Revolving Line Portions shall be made ratably
among the Lenders in accordance with their respective Revolving Line Portions.


 


SECTION 2.10          Repayment
of Loans; Evidence of Debt. 


 


(a)          The
Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each applicable Lender the then
unpaid principal amount of each Revolving Loan on the Maturity Date.


 


(b)          At
all times that full cash dominion is in effect pursuant to Section 7.3 of the Security Agreement, on each Business
Day, the Administrative Agent shall apply all funds credited to the Collection Account on such Business Day or the immediately
preceding Business Day (at the discretion of the Administrative Agent, whether or not immediately available) to prepay the Revolving
Loans and to cash collateralize the aggregate outstanding amount of all LC Exposures.


 


(c)          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, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.


 


(d)          The
Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Type
thereof and the Interest Period applicable thereto, (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 for the account of the Lenders and each Lender’s share thereof.


 




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(e)          The
entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie
evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.


 


(f)          Any
Lender may request that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute
and deliver to such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form.


 


SECTION 2.11          Prepayment
of Loans. 


 


(a)          The
Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice
in accordance with paragraph (e) of this Section and, if applicable, payment of any break funding expenses under Section 2.16.


 


(b)          In
the event and on such occasion that the Aggregate Credit Exposure exceeds the lesser of (A) the Aggregate Revolving Line Portions
and (B) the Borrowing Base, the Borrower shall prepay the Revolving Loans and LC Exposures and/or cash collateralize the aggregate
amount of all outstanding LC Exposures in an account with the Administrative Agent pursuant to Section 2.06(j), as
applicable in an aggregate amount equal to such excess.


 


(c)          To
the extent there are no Term Loans outstanding, in the event and on each occasion that any Net Proceeds are received by or on behalf
of any Loan Party in respect of any Prepayment Event, the Borrower shall, immediately after such Net Proceeds are received by such
Loan Party, prepay the Obligations and cash collateralize the aggregate outstanding amount of all LC Exposures as set forth in
Section 2.11(d) below in an aggregate amount equal to 100% of such Net Proceeds, provided that if the Borrower
shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Loan Parties intend to apply
the Net Proceeds from such event (or a portion thereof specified in such certificate), within 180 days after receipt of such Net
Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets (excluding inventory) to be used
in the business of the Loan Parties, and certifying that no Default has occurred and is continuing, then either (i) so long
as full cash dominion is not in effect, no prepayment shall be required pursuant to this paragraph in respect of the Net Proceeds
specified in such certificate or (ii) if full cash dominion is in effect, then, if the Net Proceeds specified in such certificate
are to be applied to acquire, replace or rebuild such assets by (A) the Borrower, such Net Proceeds shall be applied by the
Administrative Agent to reduce the outstanding principal balance of the Revolving Loans (without a permanent reduction of the Revolving
Line Portion) and upon such application, the Administrative Agent shall establish a Reserve against the Borrowing Base in an amount
equal to the amount of such proceeds so applied and (B) any Loan Party that is not the Borrower, such Net Proceeds shall be
deposited in a cash collateral account, and in the case of either (A) or (B), thereafter, such funds shall be made available to
the applicable Loan Party as follows:


 


(1)         Borrower
shall request a Revolving Borrowing (specifying that the request is to use Net Proceeds pursuant to this Section) or the
applicable Loan Party shall request a release from the cash collateral account be made in the amount needed;


 




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(2)         so
long as the conditions set forth in Section 4.02 have been met, the Lenders shall make such Revolving Borrowing or
the Administrative Agent shall release funds from the cash collateral account; and


 


(3)         in
the case of Net Proceeds applied against the Revolving Borrowing, the Reserve established with respect to such insurance proceeds
shall be reduced by the amount of such Revolving Borrowing;


 


provided that
to the extent of any such Net Proceeds therefrom that have not been so applied by the end of such 180 day period, a prepayment
shall be required at such time in an amount equal to such Net Proceeds that have not been so applied; provided, further
that the Borrower shall not be permitted to make elections to use Net Proceeds to acquire (or replace or rebuild) real property,
equipment or other tangible assets (excluding inventory) with respect to Net Proceeds in any fiscal year in an aggregate amount
in excess of $20,000,000.


 


(d)          All
such amounts pursuant to Section 2.11(c) shall be applied, to prepay the Revolving Loans without a corresponding reduction
in the Revolving Line Portions and to cash collateralize the aggregate outstanding amount of all LC Exposures.


 


(e)          The
Borrower shall notify the Administrative Agent by telephone (confirmed by fax) or through Electronic System, if arrangements for
doing so have been approved by the Administrative Agent, of any prepayment hereunder not later than 11:00 a.m., New York City
time, (i) in the case of prepayment of a Eurodollar Revolving Borrowing, three (3) Business Days before the date of prepayment,
or (ii) in the case of prepayment of an ABR Revolving Borrowing, one (1) Business Day before the date of prepayment.
Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion
thereof to be prepaid; provided that, if a notice of prepayment is given in connection with a conditional notice of termination
of the Revolving Line Portions as contemplated by Section 2.09, then such notice of prepayment may be revoked if such
notice of termination is revoked in accordance with Section 2.09. Promptly following receipt of any such notice relating
to a Revolving Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of
any Revolving Borrowing shall be in an amount that would be permitted in the case of an advance of a Revolving Borrowing of the
same Type as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be applied ratably to the Revolving
Loans included in the prepaid Borrowing; provided, however, in the event that the Loans in respect of any Borrowing
held by any Lender are in excess of its pro rata share of the Aggregate Revolving Line Portions, the prepayment shall be applied
first to any Lender that holds Loans in the amount of such excess, prior to being applied to the Loans of any other Lender. Prepayments
shall be accompanied by (i) accrued interest to the extent required by Section 2.13 and (ii) break funding
payments pursuant to Section 2.16.


 


SECTION 2.12          Fees.



 


(a)          The
Borrower agrees to pay to the Administrative Agent for the account of each Lender an unused line fee, which shall accrue at a rate
per annum equal to 0.05% on the average daily amount of the Available Revolving Line Portion of such Lender during the period from
and including the Effective Date to but excluding the date on which the Revolving Line Portions terminate. Accrued unused line
fees shall be payable in arrears on the first Business Day of each calendar month and on the date on which the Revolving Line Portions
terminate, commencing on the first such date to occur after the Effective Date. All unused line fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the
last day).


 




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(b)          The
Borrower agrees to pay (i) to each Issuing Bank a letter of credit fee with respect to Letters of Credit issued by such Issuing
Bank, which shall accrue at the same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving Loans,
on the average daily amount of such Issuing Bank’s LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Effective Date to but excluding the later of the date on which such
Issuing Bank’s Revolving Line Portion terminates and the date on which such Issuing Bank ceases to have any LC Exposure,
and (ii) to each Issuing Bank an issuing bank fee, which shall accrue at the rate of 0.125% per annum on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable to Letters
of Credit issued by such Issuing Bank during the period from and including the Effective Date to but excluding the later of the
date of termination of the Revolving Line Portions and the date on which there ceases to be any LC Exposure, as well as such Issuing
Bank’s standard fees and commissions with respect to the issuance, amendment, cancellation, negotiation, transfer, presentment,
renewal or extension of any Letter of Credit issued by it or processing of drawings thereunder. Letter of credit fees and issuing
bank fees accrued through and including the last day of each calendar month shall be payable on the first Business Day of each
calendar month following such last day, commencing on the first such date to occur after the Effective Date; provided that
all such fees shall be payable on the date on which the Revolving Line Portions terminate and any such fees accruing after the
date on which the Revolving Line Portions terminate shall be payable on demand. Any other fees payable to any Issuing Bank pursuant
to this paragraph shall be payable within ten (10) days after demand. All letter of credit fees and issuing bank fees shall
be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).


 


(c)          The
Borrower agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.


 


(d)          All
fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent (or to an Issuing
Bank, in the case of fees payable to it) for distribution, in the case of unused line fees, to the Lenders. Fees paid shall not
be refundable under any circumstances.


 


SECTION 2.13          Interest.



 


(a)          
The Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Rate.


 


(b)          The
Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate.


 


(c)          [Intentionally
Omitted.]


 


(d)          Notwithstanding
the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well
as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount,
2% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section.


 




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(e)          Accrued
interest on each Loan (for ABR Loans, accrued through the last day of the prior calendar month) shall be payable in arrears on
each Interest Payment Date for such Loan and upon termination of the Revolving Line Portions; provided that (i) interest
accrued pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in the event of any repayment
or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in
the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on
such Loan shall be payable on the effective date of such conversion.


 


(f)          All
interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall
be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate
Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive
absent manifest error.


 


SECTION 2.14          Alternate
Rate of Interest; Illegality. 


 


(a)          If
prior to the commencement of any Interest Period for a Eurodollar Borrowing:


 


(i)          the
Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable (including, without limitation, by means
of an Interpolated Rate or because the LIBO Screen Rate is not available or published on a current basis) for such Interest Period;
or


 


(ii)         the
Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period;


 


then the Administrative
Agent shall give notice thereof to the Borrower and the Lenders through Electronic System as provided in Section 9.01
as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances
giving rise to such notice no longer exist, (A) any Interest Election Request that requests the conversion of any Borrowing
to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective and any such Eurodollar Borrowing shall be
repaid or converted into an ABR Borrowing on the last day of the then current Interest Period applicable thereto, and (B) if
any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.


 


(b)          If
any Lender determines that any Requirement of Law has made it unlawful, or if any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable lending office to make, maintain, fund or continue any Eurodollar Borrowing, or any
Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits
of, dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligations of such Lender to make, maintain, fund or continue Eurodollar Loans or to convert ABR Borrowings to Eurodollar
Borrowings will be suspended until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving
rise to such determination no longer exist. Upon receipt of such notice, the Borrower will upon demand from such Lender (with a
copy to the Administrative Agent), either convert or prepay all Eurodollar Borrowings of such Lender to ABR Borrowings, either
on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Borrowings to
such day, or immediately, if such Lender may not lawfully continue to maintain such Loans. Upon any such conversion or prepayment,
the Borrower will also pay accrued interest on the amount so converted or prepaid.


 




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(c)          If
at any time the Administrative Agent determines (which determination shall be conclusive absent manifest error) that (i) the circumstances
set forth in clause (a)(i) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set
forth in clause (a)(i) have not arisen but either (w) the supervisor for the administrator of the LIBO Screen Rate has made
a public statement that the administrator of the LIBO Screen Rate is insolvent (and there is no successor administrator that will
continue publication of the LIBO Screen Rate), (x) the administrator of the LIBO Screen Rate has made a public statement identifying
a specific date after which the LIBO Screen Rate will permanently or indefinitely cease to be published by it (and there is no
successor administrator that will continue publication of the LIBO Screen Rate), (y) the supervisor for the administrator of the
LIBO Screen Rate has made a public statement identifying a specific date after which the LIBO Screen Rate will permanently or indefinitely
cease to be published or (z) the supervisor for the administrator of the LIBO Screen Rate or a Governmental Authority having jurisdiction
over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Screen Rate may no longer
be used for determining interest rates for loans, then the Administrative Agent and the Borrower shall endeavor to establish an
alternate rate of interest to the LIBO Rate that gives due consideration to the then prevailing market convention for determining
a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement
to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable (but, for the
avoidance of doubt, such related changes shall not include a reduction of the Applicable Rate). Notwithstanding anything to the
contrary in Section 9.02, such amendment shall become effective without any further action or consent of any other party
to this Agreement so long as the Administrative Agent shall not have received, within five (5) Business Days of the date notice
of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required
Lenders object to such amendment. Until an alternate rate of interest shall be determined in accordance with this clause (c)
(but, in the case of the circumstances described in clause (ii) of the first sentence of this Section 2.14(c), only
to the extent the LIBO Screen Rate for such Interest Period is not available or published at such time on a current basis), (x)
any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar
Borrowing shall be ineffective and any such Eurodollar Borrowing shall be repaid or converted into an ABR Borrowing on the last
day of the then current Interest Period applicable thereto, and (y) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing; provided that, if such alternate rate of interest shall be less than zero,
such rate shall be deemed to be zero for the purposes of this Agreement. 


 


SECTION 2.15          Increased
Costs. 


 


(a)          If
any Change in Law shall:


 


(i)          impose,
modify or deem applicable any reserve, special deposit, liquidity or similar requirement (including any compulsory loan requirement,
insurance charge or other assessment) against assets of, deposits with or for the account of, or credit extended by, any Lender
(except any such reserve requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank;


 


(ii)         impose
on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (other than Taxes) affecting
this Agreement or Loans made by such Lender or any Letter of Credit; or


 




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


 


and the result of any
of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, continuing, converting into or
maintaining any Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender, such Issuing
Bank or such other Recipient of issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable
by such Lender, such Issuing Bank or such other Recipient hereunder (whether of principal, interest or otherwise), then the Borrower
will pay to such Lender, such Issuing Bank or such other Recipient, as the case may be, such additional amount or amounts as will
compensate such Lender, such Issuing Bank or such other Recipient, as the case may be, for such additional costs incurred or reduction
suffered.


 


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


 


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


 


(d)          Failure
or delay on the part of any Lender or any Issuing Bank to demand compensation pursuant to this Section shall not constitute
a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that the Borrower
shall not be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Borrower
of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s
intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 270-day period referred to above shall be extended to include the period of retroactive
effect thereof.


 




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SECTION 2.16          Break
Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan
other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default or as a result
of any prepayment pursuant to Section 2.11), (b) the conversion of any Eurodollar Loan other than on the last
day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan
on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.09(d)
and is revoked in accordance therewith but not if there are no Approving Lenders with respect to such Eurodollar Loan), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request
by the Borrower pursuant to Section 2.19 or 9.02(d), then, in any such event, the Borrower shall compensate each Lender
for the actual loss, cost and expense attributable to such event (other than lost profits). In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of
(i) the amount of interest which would have accrued on the principal amount of such Eurodollar Loan had such event not occurred,
at the Adjusted LIBO Rate that would have been applicable to such Eurodollar Loan, for the period from the date of such event to
the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Eurodollar Loan), over (ii) the amount of interest which would accrue
on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other banks in the eurodollar market. A certificate of
any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any
such certificate within ten (10) days after receipt thereof.


 


SECTION 2.17          Withholding
of Taxes; Gross-Up. 


 


(a)          Payments
Free of Taxes. 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 (as determined in the
good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment
by a withholding agent, then the applicable withholding agent 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, 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 2.17) the applicable Recipient receives an amount equal to the sum it would have received had no such
deduction or withholding been made.


 


(b)          Payment
of Other Taxes by the Borrower. 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, Other Taxes.


 


(c)          Evidence
of Payments. As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority pursuant to this
Section 2.17, 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.


 


(d)          Indemnification
by the Loan Parties. The Loan Parties shall jointly and severally indemnify each Recipient, within ten (10) days after
demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable
to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment
to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment
or liability delivered to any Loan Party by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent
on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.


 




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(e)          Indemnification
by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor,
for (i) any Indemnified 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 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 9.04(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 such Lender from any other source
against any amount due to the Administrative Agent under this paragraph (e).


 


(f)          Status
of Lenders.


 


(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 2.17(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, in the event that the Borrower is a U.S. Person,


 


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


 


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


 




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


 


(2)         in
the case of a Foreign Lender claiming that its extension of credit will generate U.S. effectively connected income, an executed
copy of IRS Form W-8ECI;


 


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


 


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


 


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


 




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(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 Effective Date.


 


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)          Treatment
of Certain Refunds. 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 2.17 (including by the payment of additional
amounts pursuant to this Section 2.17), 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 2.17 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
Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification
payments or additional amounts giving rise to such refund had never been paid. This paragraph (g) 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)          Survival.
Each party’s obligations under this Section 2.17 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 Revolving Line Portions and the repayment,
satisfaction or discharge of all obligations under any Loan Document.


 


(i)          Defined
Terms. For purposes of this Section 2.17, the term “applicable law” includes FATCA.


 




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SECTION 2.18          Payments
Generally; Allocation of Proceeds; Sharing of Set-offs. 


 


(a)          The
Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of
LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 3:00 p.m., New
York City time, on the date when due, in immediately available funds, without set off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices
at 10 South Dearborn Street, 22nd Floor, Chicago, Illinois, except payments to be made directly to an Issuing Bank
as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03
shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder
shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and,
in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.


 


(b)          Any
proceeds of Collateral received by the Administrative Agent (i) not constituting either (A) a specific payment of principal,
interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower), (B) a
mandatory prepayment (which shall be applied in accordance with Section 2.11) or (C) amounts to be applied from
the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10(b))
or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders
so direct, shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then
due to the Administrative Agent and the Issuing Banks from the Borrower (other than in connection with Banking Services Obligations
or Swap Agreement Obligations), second, to pay any fees or expense reimbursements then due to the Lenders from the Borrower
(other than in connection with Banking Services Obligations or Swap Agreement Obligations), third, to pay interest then
due and payable on the Loans ratably, fourth, to prepay principal on the Loans and unreimbursed LC Disbursements, fifth,
to pay an amount to the Administrative Agent equal to one hundred five percent (105%) of the aggregate undrawn face amount of all
outstanding Letters of Credit and the aggregate amount of any unpaid LC Disbursements, to be held as cash collateral for such Obligations,
sixth, to pay any amounts owing with respect to Banking Services Obligations and Swap Agreement Obligations up to and including
the amount most recently provided to the Administrative Agent pursuant to Section 2.22, for which Reserves have been established,
ratably, seventh, to payment of any amounts owing with respect to Banking Services Obligations and Swap Agreement Obligations
up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22 and to the extent
not paid pursuant to clause sixth above, ratably, and eighth, to the payment of any other Secured Obligation due
to the Administrative Agent or any Lender by the Borrower. Notwithstanding the foregoing, amounts received from any Loan Party
shall not be applied to any Excluded Swap Obligation of such Loan Party. Notwithstanding anything to the contrary contained in
this Agreement, unless so directed by the Borrower, or unless a Default is in existence, neither the Administrative Agent nor any
Lender shall apply any payment which it receives to any Eurodollar Loan, except (a) on the expiration date of the Interest
Period applicable thereto or (b) in the event, and only to the extent, that there are no outstanding ABR Loans and, in any
such event, the Borrower shall pay the break funding payment required in accordance with Section 2.16. The Administrative
Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds
and payments to any portion of the Secured Obligations.


 


(c)          At
the election of the Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses
(including, without limitation, all reimbursement for fees, costs and expenses pursuant to Section 9.03), and other sums
payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by
the Borrower pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from
any deposit account of the Borrower maintained with the Administrative Agent. The Borrower hereby irrevocably authorizes the Administrative
Agent to charge any deposit account of the Borrower maintained with the Administrative Agent for each payment of principal, interest
and fees as it becomes due hereunder or any other amount due under the Loan Documents.


 




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(d)          If,
except as otherwise expressly provided herein, any Lender shall, by exercising any right of set off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Loans or LC Disbursements resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Loans and LC Disbursements and accrued interest thereon than the
proportion received by any other similarly situated Lender, then the Lender receiving such greater proportion shall purchase (for
cash at face value) participations in the Loans and LC Disbursements of other Lenders to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Loans and LC Disbursements; provided that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed
to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or LC Disbursements
to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of
this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights
of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.


 


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


 


(f)          The
Administrative Agent may from time to time provide the Borrower with account statements or invoices with respect to any of the
Secured Obligations (the “Statements”). The Administrative Agent is under no duty or obligation to provide Statements,
which, if provided, will be solely for the Borrower’s convenience. Statements may contain estimates of the amounts owed during
the relevant billing period, whether of principal, interest, fees or other Secured Obligations. If the Borrower pays the full amount
indicated on a Statement on or before the due date indicated on such Statement, the Borrower shall not be in default of payment
with respect to the billing period indicated on such Statement; provided, that acceptance by the Administrative Agent, on behalf
of the Lenders, of any payment that is less than the total amount actually due at that time (including but not limited to any past
due amounts) shall not constitute a waiver of the Administrative Agent’s or the Lenders’ right to receive payment in
full at another time.


 




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SECTION 2.19          Mitigation
Obligations; Replacement of Lenders.


 


(a)          If
any Lender requests compensation under Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or
additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17,
as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.


 


(b)          If
any Lender requests compensation under Section 2.15, or if the Borrower is required to pay any Indemnified Taxes or
additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender becomes a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender
and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights (other than its existing rights to payments pursuant
to Section 2.15 or 2.17) and obligations under this Agreement and other Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the
Borrower shall have received the prior written consent of the Administrative Agent (and in circumstances where their consent would
be required under Section 9.04, the Issuing Banks), which consent shall not unreasonably be withheld, (ii) such
Lender shall have received payment of an amount equal to the outstanding principal of its Loans and funded LC Disbursements, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17,
such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment
and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower
to require such assignment and delegation cease to apply. Each party hereto agrees that (a) an assignment required pursuant to
this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and
the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an
Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and (b) the Lender required
to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented
to an be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such
assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable
Lender, provided that any such documents shall be without recourse to or warranty by the parties thereto.


 


SECTION 2.20          Defaulting
Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes
a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:


 


(a)          fees
shall cease to accrue on the unfunded portion of the Revolving Line Portion of such Defaulting Lender pursuant to Section 2.12(a);


 




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(b)          any
payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Section 2.18(b) or otherwise) or received by the Administrative
Agent from a Defaulting Lender pursuant to Section 9.08 shall be applied at such time or times as may be determined by the
Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative
Agent hereunder; second, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent
jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its
obligations under this Agreement or under any other Loan Document; and third, to such Defaulting Lender or as otherwise
directed by a court of competent jurisdiction. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender
that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section shall be deemed paid to and redirected
by such Defaulting Lender, and each Lender irrevocably consents hereto;


 


(c)          such
Defaulting Lender shall not have the right to vote on any issue on which voting is required (other than to the extent expressly
provided in Section 9.02(b)) and the Revolving Line Portion and Credit Exposure of such Defaulting Lender shall not be included
in determining whether the Required Lenders have taken or may take any action hereunder (including
any consent to any amendment, waiver or other modification pursuant to Section 9.02) or under any other Loan Document;
provided, that, except as otherwise provided in Section 9.02, this clause (c)
shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent
of such Lender or each Lender directly affected thereby;


 


Notwithstanding anything
to the contrary herein, no Defaulting Lender shall be prohibited from disapproving a Borrowing Request or a request for the issuance,
amendment, renewal or extension of a Letter of Credit in accordance with Section 2.03 or 2.06(b), as applicable.


 


SECTION 2.21          Returned
Payments. If after receipt of any payment which is applied to the payment of all or any part
of the Obligations (including a payment effected through exercise of a right of setoff), the Administrative Agent or any Lender
is for any reason compelled to surrender such payment or proceeds to any Person because such payment or application of proceeds
is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible setoff, or a diversion
of trust funds, or for any other reason (including pursuant to any settlement entered into by the Administrative Agent or such
Lender in its discretion), then the Obligations or part thereof intended to be satisfied shall be revived and continued and this
Agreement shall continue in full force as if such payment or proceeds had not been received by the Administrative Agent or such
Lender. The provisions of this Section 2.21 shall be and remain effective notwithstanding any contrary action which
may have been taken by the Administrative Agent or any Lender in reliance upon such payment or application of proceeds. The provisions
of this Section 2.21 shall survive the termination of this Agreement.


 


SECTION 2.22         Banking
Services and Swap Agreements. Each Lender or Affiliate thereof providing Banking Services for,
or having Swap Agreements with, any Loan Party shall deliver to the Administrative Agent, promptly after entering into such Banking
Services or Swap Agreements, written notice setting forth the aggregate amount of all Banking Services Obligations and Swap Agreement
Obligations of such Loan Party to such Lender or Affiliate (whether matured or unmatured, absolute or contingent). In addition,
each such Lender or Affiliate thereof shall deliver to the Administrative Agent, from time to time after a significant change therein
or upon a request therefor, a summary of the amounts due or to become due in respect of such Banking Services Obligations and Swap
Agreement Obligations. The most recent information provided to the Administrative Agent shall be used in determining the amounts
to be applied in respect of such Banking Services Obligations and/or Swap Agreement Obligations pursuant to Section 2.18(b)
and which tier of the waterfall, contained in Section 2.18(b), such Banking Services Obligations and/or Swap Agreement
Obligations will be placed.


 




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ARTICLE III.


 


Representations and
Warranties


 


Each Loan Party represents
and warrants to the Lenders that, in each case, other than with respect to the Disclosed Matters:


 


SECTION 3.01         Organization;
Powers. Each Loan Party and each Restricted Subsidiary is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its
business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, is qualified to do business, and is in good standing, in every jurisdiction where such
qualification is required.


 


SECTION 3.02         Authorization;
Enforceability. The Transactions are within each Loan Party’s organizational powers and
have been duly authorized by all necessary organizational actions and, if required, actions by equity holders. This Agreement has
been duly executed and delivered by each Loan Party, and each other Loan Document to which each Loan Party is a party, when delivered
hereunder, will have been duly executed and delivered by such Loan Party. This Agreement constitutes, and each other Loan Document
when delivered hereunder shall constitute, a legal, valid and binding obligation of each Loan Party, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at
law.


 


SECTION 3.03         Governmental
Approvals; No Conflicts. The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and
are in full force and effect and except for filings necessary to perfect Liens created pursuant to the Loan Documents, (b) will
not violate any Requirement of Law applicable to any Loan Party or any of its Restricted Subsidiaries, (c) will not violate
or result in a default under (i) any certificate or articles of incorporation or organization, by-laws, operating, management or
partnership agreement or other organizational documents of any Loan Party or (ii) any indenture, material agreement or other material
instrument binding upon any Loan Party or any of its Restricted Subsidiaries or the assets of any Loan Party or any of its Restricted
Subsidiaries, or give rise to a right thereunder to require any payment to be made by any Loan Party or any of its Restricted Subsidiaries,
and (d) will not result in the creation or imposition of any Lien on any asset of any Loan Party or any of its Restricted
Subsidiaries, except Liens created pursuant to the Loan Documents.


 


SECTION 3.04         Financial
Condition; No Material Adverse Change. (a) The Borrower has heretofore furnished to the
Lenders its consolidated balance sheet and statements of income, stockholders equity and cash flows as of and for the fiscal year
ended December 31, 2018, reported on by BDO USA, LLP, independent public accountants. Such financial statements present fairly,
in all material respects, the financial position and results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such date and for such period in accordance with GAAP.


 


(b)          No
event, change or condition has occurred that has had, or could reasonably be expected to have, a Material Adverse Effect, since
December 31, 2018.


 


SECTION 3.05         Properties.
(a) As of the Effective Date, Schedule 3.05 sets forth the address of each parcel of real property that is owned
or leased by each Loan Party. Each of such leases and subleases is valid and enforceable in accordance with its terms and is in
full force and effect, and no default by any party to any such lease or sublease exists. Each of the Loan Parties and its Restricted
Subsidiaries has good and indefeasible title to, or valid leasehold interests in, all of its real and personal property that is
material to the businesses of the Loan Parties, free of all Liens other than those permitted by Section 6.02.


 




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(b)          Each
Loan Party and each Restricted Subsidiary owns, or is licensed to use, all trademarks, trade names, copyrights, patents and other
intellectual property necessary to its business as currently conducted, a correct and complete list of which, as of the Effective
Date, is set forth on Schedule 3.05, and the use thereof by each Loan Party and each Restricted Subsidiary does not
infringe in any material respect upon the rights of any other Person, and each Loan Party’s rights thereto are not subject
to any licensing agreement or similar arrangement.


 


SECTION 3.06          Litigation
and Environmental Matters. (a)          No
actions, suits or proceedings by or before any arbitrator or Governmental Authority are pending or, to the knowledge of any Loan
Party, threatened against or affecting any Loan Party or any Restricted Subsidiary (i) as to which there is a reasonable possibility
of an adverse determination and that, if adversely determined, could reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect or (ii) that involve this Agreement or the Transactions.


 


(b)          (i) No
Loan Party or any Restricted Subsidiary has received notice of any claim with respect to any Environmental Liability or knows of
any basis for any Environmental Liability and (ii) except with respect to any other matters that, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect, no Loan Party or any Restricted Subsidiary (A) has
failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (B) has become subject to any Environmental Liability, (C) has received notice of any claim
with respect to any Environmental Liability or (D) knows of any basis for any Environmental Liability.


 


SECTION 3.07          Compliance
with Laws and Agreements; No Default. Except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect, each Loan Party and each Restricted Subsidiary
is in compliance with (i) all Requirements of Law applicable to it or its property and (ii) all indentures, agreements
and other instruments binding upon it or its property.


 


SECTION 3.08          Investment
Company Status. No Loan Party or Restricted Subsidiary is an “investment company”
as defined in, or subject to regulation under, the Investment Company Act of 1940.


 


SECTION 3.09          Taxes.
Each Loan Party and each Restricted Subsidiary has timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested
in good faith by appropriate proceedings and for which such Loan Party or such Restricted Subsidiary, as applicable, has set aside
on its books adequate reserves or (b) to the extent that the failure to do so could not be expected to result in a Material Adverse
Effect. No tax liens have been filed and no claims are being asserted with respect to any such taxes.


 


SECTION 3.10          ERISA.
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. All foreign pension
schemes sponsored or maintained by the Borrower and each of its Restricted Subsidiaries is maintained in accordance with the requirements
of applicable foreign law, except where noncompliance could not reasonably be expected to have a Material Adverse Effect.


 




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SECTION 3.11          Disclosure.
The Loan Parties have disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which any Loan
Party or any Restricted Subsidiary is subject, and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. None of the other reports, financial statements, certificates or
other information furnished in writing by or on behalf of any Loan Party to the Administrative Agent or any Lender in connection
with the negotiation of this Agreement or any other Loan Document (as modified or supplemented by other information so furnished)
contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial
information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to
be reasonable at the time delivered and, if such projected financial information was delivered prior to the Effective Date, as
of the Effective Date. As of the Effective Date, to the knowledge of the Borrower, the information included in the Beneficial Ownership
Certification provided on or prior to the Effective Date to any Lender in connection with this Agreement is true and correct in
all respects.


 


SECTION 3.12          Solvency.
Immediately after the consummation of the Transactions to occur on the Effective Date, (a) the sum of the Indebtedness (including
contingent liabilities) of the Borrower and its Subsidiaries, taken as a whole, does not exceed the assets of the Borrower and
its Subsidiaries at a fair valuation, taken as a whole, on a going concern basis; (b) the capital of the Borrower and its Subsidiaries,
taken as a whole, is not unreasonably small in relation to the business of the Borrower and its Subsidiaries, taken as a whole,
contemplated on the Effective Date and (c) the Borrower and its Subsidiaries, taken as a whole, do not intend to incur, or believe
that they will incur, Indebtedness including current obligations beyond their ability to pay such Indebtedness as it matures (in
the ordinary course of business). For the purposes hereof, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for
accrual under Statement of Financial Accounting Standard No. 5).


 


SECTION 3.13          Insurance.
 Schedule 3.13 sets forth a description of all insurance
maintained by or on behalf of the Loan Parties and their Restricted Subsidiaries as of the Effective Date. As of the Effective
Date, all premiums in respect of such insurance have been paid. The Borrower maintains, and has caused each Restricted Subsidiary
to maintain, with financially sound and reputable insurance companies, insurance on all their real and personal property in such
amounts, subject to such deductibles and self-insurance retentions and covering such properties and risks as are adequate and customarily
maintained by companies engaged in the same or similar businesses operating in the same or similar locations.


 


SECTION 3.14          Capitalization
and Subsidiaries. Schedule 3.14 sets forth (a) a correct and complete list
of the name and relationship to the Borrower of each Subsidiary, (b) a true and complete listing of each class of each of
the Borrower’s authorized Equity Interests, all of which issued shares are validly issued, outstanding, fully paid and non-assessable,
and owned beneficially and of record by the Persons identified on Schedule 3.14, and (c) the type of entity of
the Borrower and each Subsidiary. All of the issued and outstanding Equity Interests owned by any Loan Party 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. There are no outstanding commitments or other obligations of any Loan Party to issue, and no options, warrants
or other rights of any Person to acquire, any shares of any class of capital stock or other equity interests of any Loan Party.


 




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SECTION 3.15          Security
Interest in Collateral. As of the Effective Date, the provisions of this Agreement and the other
Loan Documents create legal and valid Liens on all of the Collateral in favor of the Administrative Agent, for the benefit of the
Secured Parties, and such Liens constitute perfected and continuing Liens on the Collateral, securing the Secured Obligations,
enforceable against the applicable Loan Party and all third parties, and having priority over all other Liens on the Collateral
except (a) Permitted Encumbrances, to the extent any such Permitted Encumbrances would have priority over the Liens in favor
of the Administrative Agent pursuant to any applicable law or agreement, (b) Liens perfected only by possession (including
possession of any certificate of title) to the extent the Administrative Agent has not obtained or does not maintain possession
of such Collateral and (c) Liens in favor of the Term Loan Representative with respect to the Term Loan Priority Collateral, to
the extent permitted pursuant to the Intercreditor Agreement.


 


SECTION 3.16          Employment
Matters. As of the Effective Date, there are no strikes, lockouts or slowdowns against any Loan
Party or any Restricted Subsidiary pending or, to the knowledge of any Loan Party, threatened. The hours worked by and payments
made to employees of the Loan Parties and their Restricted Subsidiaries have not been in violation of the Fair Labor Standards
Act or any other applicable Federal, state, local or foreign law dealing with such matters. All payments due from any Loan Party
or any Restricted Subsidiary, or for which any claim may be made against any Loan Party or any Restricted Subsidiary, on account
of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of
such Loan Party or Restricted Subsidiary.


 


SECTION 3.17          Federal
Reserve Regulations. No part of the proceeds of any Loan or Letter of Credit has been used or
will be used, whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X.


 


SECTION 3.18          Use
of Proceeds. The proceeds of the Loans have been used and will be used, whether directly or indirectly
as set forth in Section 5.08.


 


SECTION 3.19          Anti-Corruption
Laws and Sanctions. The Borrower has implemented and maintains in effect policies and procedures
reasonably designed to achieve compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees
and agents with Anti-Corruption Laws and applicable Sanctions, and 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 and are not knowingly engaged in any activity that could reasonably be expected to
result in any Loan Party being designated as a Sanctioned Person. None of (a) the Borrower, any Subsidiary or, to the knowledge
of the Borrower, any of their respective directors, officers or employees, or (b) to the knowledge of the Borrower, any agent of
the Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established
hereby, is a Sanctioned Person. No Borrowing or Letter of Credit, use of proceeds or other Transactions will violate any Anti-Corruption
Law or applicable Sanctions.


 


SECTION 3.20          EEA
Financial Institutions. No Loan Party is an EEA Financial Institution.


 







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ARTICLE IV.


 


Conditions


 


SECTION 4.01          Effective
Date. The effectiveness of this Agreement on the Effective Date is subject to the satisfaction
(or waiver in accordance with Section 9.02) of the following conditions:


 



(a)          The
Administrative Agent (or its counsel) shall have received (i) from each party hereto either (A) a counterpart of this
Agreement signed on behalf of such party or (B) written evidence reasonably satisfactory to the Administrative Agent (which
may include facsimile or other electronic transmission of a signed signature page of this Agreement) that such party has signed
a counterpart of this Agreement and (ii) duly executed copies of the Loan Documents and such other certificates, documents,
instruments and agreements, in each case, to the extent described in the list of documents attached as Exhibit G.


 


(b)          The
Administrative Agent shall have received favorable written opinions (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of (i) Cravath, Swaine & Moore LLP, special New York counsel for the Loan Parties and (ii) Jones
Walker LLP, special Louisiana counsel for the Loan Parties, in form and substance reasonably satisfactory to the Administrative
Agent and its counsel and covering such customary matters relating to the Loan Parties, the Loan Documents or the Transactions
as the Administrative Agent shall reasonably request. The Borrower hereby requests such counsels to deliver such opinions.


 


(c)          The
Administrative Agent shall have received such documents and certificates relating to the organization, existence and good standing
of the initial Loan Parties in their respective jurisdictions of organization, the authorization of the Transactions and any other
legal matters relating to such Loan Parties, the Loan Documents or the Transactions, all in form and substance reasonably satisfactory
to the Administrative Agent and its counsel and as further described in the list of documents identified in Section C of Exhibit
G.


 


(d)          The
Administrative Agent shall have received a certificate, dated the Effective Date and signed by the President, a Vice President
or a Responsible Officer of the Borrower, certifying (i) that the representations and warranties contained in Article III are true
and correct in all material respects (or, with respect to any representation or warranty which by its terms is made as of a specified
date, is true and correct in all material respects only as of such specified date, or, with respect to any representation or warranty
which is subject to any materiality qualifier, is true and correct in all respects) and (ii) that no Default or Event of Default
has occurred and is continuing as of such date.


 


(e)          (i)
The Administrative Agent shall have received, at least five (5) days prior to the Effective Date, all documentation and other information
regarding the Borrower requested in connection with applicable “know your customer” and anti-money laundering rules
and regulations, including the Patriot Act, to the extent requested in writing of the Borrower at least ten (10) days prior to
the Effective Date and (ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial
Ownership Regulation, at least five (5) days prior to the Effective Date, any Lender that has requested, in a written notice to
the Borrower at least ten (10) days prior to the Effective Date, a Beneficial Ownership Certification in relation to the Borrower
shall have received such Beneficial Ownership Certification (provided that, upon the execution and delivery by such Lender
of its signature page to this Agreement, the condition set forth in this clause (e) shall be deemed to be satisfied)


 


(f)          The
Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Effective Date, including,
to the extent invoiced at least one (1) Business Day prior to the Effective Date, reimbursement or payment of all reasonable and
documented out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.


 


(g)          The
Administrative Agent shall have received a notice setting forth the deposit account of the Borrower (the “Funding Account”)
to which the Administrative Agent is authorized by the Borrower to transfer the proceeds of any Borrowings requested or authorized
pursuant to this Agreement.


 




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(h)          The
Administrative Agent shall have received a Borrowing Base Certificate which calculates the Borrowing Base as of February 28, 2019.


 


The Administrative
Agent shall notify the Borrower, the Lenders and the Issuing Bank of the Effective Date, and such notice shall be conclusive and
binding.


 


SECTION 4.02         Each
Credit Event. The obligation, if any, of a Lender to make a Loan on the occasion of any Borrowing
(other than a conversion or continuation of any Loans), and of an Issuing Bank to issue, amend, renew or extend any Letter of Credit,
is subject to the satisfaction of the following conditions:


 


(a)          The
representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects with
the same effect as though made on and as of the date of such Borrowing or the date of issuance, amendment, renewal or extension
of such Letter of Credit, as applicable (it being understood and agreed that any representation or warranty which by its terms
is made as of a specified date shall be required to be true and correct in all material respects only as of such specified date,
and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct
in all respects).


 


(b)          At
the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be continuing.


 


(c)          After
giving effect to any Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, Availability shall not
be less than zero.


 


(d)          Such
Lender shall have provided its approval of such Borrowing in accordance with Section 2.03 or such Issuing Bank shall have
provided its approval for such issuance, amendment, renewal or extension in accordance with Section 2.06(b), as applicable.


 


Each Borrowing and
each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in paragraphs (a), (b) and (c) of this
Section.


 


ARTICLE V.


 


Affirmative Covenants


 


Until the Revolving
Line Portions shall have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder
shall have been paid in full and all Letters of Credit shall have expired or terminated in each case without any pending draw,
and all LC Disbursements shall have been reimbursed, each Loan Party executing this Agreement covenants and agrees from and after
the Effective Date, jointly and severally with all of the other Loan Parties, with the Lenders that:


 


SECTION 5.01         Financial
Statements; Borrowing Base and Other Information. The Borrower will furnish to the Administrative
Agent (for the Administrative Agent's distribution of each item in clauses (a), (b), (c), (e) and (f) below to each Lender through
a service such as Intralinks or such other means as determined by the Administrative Agent):


 




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(a)          within
ninety (90) days after the end of each fiscal year of the Borrower, its audited consolidated balance sheet and related statements
of operations, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by independent public accountants of recognized national standing
(without a “going concern” or like qualification or exception and without any qualification, commentary or exception
as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects
the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, accompanied by any management letter prepared by said accountants;


 


(b)          within
forty-five (45) days after the end of each fiscal quarter of each fiscal year of the Borrower (or, for any fiscal month of
the Borrower during which an Excess Availability Reporting Period was in effect at any point during such month, within 30 days
of the end of such fiscal month of the Borrower, to the extent requested by the Administrative Agent), (i) its (x) consolidated
balance sheet as of the end of such fiscal quarter (or such fiscal month, as applicable), (y) related statements of operations
for such fiscal quarter (or such fiscal month, as applicable) and the then elapsed portion of such fiscal year, and (z) related
statements of stockholders’ equity and cash flows for the then elapsed portion of such fiscal year, and (ii) (x) a consolidated
balance sheet for the Borrower and its consolidated Restricted Subsidiaries as of the end of such fiscal quarter (or such fiscal
month, as applicable), (y) related statements of operations for the Borrower and its consolidated Restricted Subsidiaries for such
fiscal quarter (or such fiscal month, as applicable) and the then elapsed portion of such fiscal year, and (z) related statements
of stockholders’ equity and cash flows for the Borrower and its consolidated Restricted Subsidiaries for the then elapsed
portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial Officers
as presenting fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated
Subsidiaries (or the Borrower and its consolidated Restricted Subsidiaries, as applicable) on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes;


 


(c)          concurrently
with, or on the same day as the day of, any delivery of financial statements under clause (a) or (b) above, a
certificate of a Financial Officer of the Borrower in substantially the form of Exhibit D (i) certifying, in the
case of the financial statements delivered under clause (b), as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and its consolidated Subsidiaries (or the Borrower and its consolidated Restricted
Subsidiaries, as applicable) on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes, (ii) certifying as to whether a Default has occurred and, if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken with respect thereto, (iii) setting forth reasonably
detailed calculations demonstrating compliance with Section 6.13 (whether or not a Compliance Period is in effect at such
time), (iv) identifying all Material Subsidiaries and (v) stating whether any change in GAAP or in the application thereof
has occurred since the date of the audited financial statements referred to in Section 3.04 and, if any such change
has occurred, specifying the effect of such change on the financial statements accompanying such certificate;


 


(d)          [intentionally
omitted];


 


(e)          as
soon as available but in any event no later than sixty (60) days after the end of, and no earlier than thirty (30) days prior to
the end of, each fiscal year of the Borrower, a copy of the plan and forecast (including a projected consolidated and consolidating
balance sheet, income statement and funds flow statement) of the Borrower for each month of the upcoming fiscal year (the “Projections”)
in form reasonably satisfactory to the Administrative Agent;


 




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(f)          as
soon as available but in any event within fifteen (15) days of the end of each calendar month (or, for any calendar week during
which an Excess Availability Reporting Period was in effect at any time during such calendar week, within three (3) Business Days
of the end of such calendar week, to the extent requested by the Administrative Agent), and at such other times as may be necessary
to re-determine Availability or as may be requested by the Administrative Agent, as of the period then ended, a Borrowing Base
Certificate and supporting information in connection therewith, together with any additional reports with respect to the Borrowing
Base as the Administrative Agent may reasonably request;


 


(g)          as
soon as available but in any event within fifteen (15) days of the end of each calendar month and at such other times as may be
requested by the Administrative Agent, as of the period then ended, all delivered electronically in a text formatted file acceptable
to the Administrative Agent;


 


(i)          a
detailed aging of the Borrower’s Accounts, including all invoices aged by invoice date and due date (with an explanation
of the terms offered), prepared in a manner reasonably acceptable to the Administrative Agent, together with a summary specifying
the name, address, and balance due for each Account Debtor;


 


(ii)         a
schedule detailing the Borrower’s Inventory, in form reasonably satisfactory to the Administrative Agent, (1) by location
(showing Inventory in transit and any Inventory located with a third party under any consignment, bailee arrangement or warehouse
agreement), by class (raw material, work-in-process and finished goods), by product type, and by volume on hand, which Inventory
shall be valued at the lower of cost (determined on a first-in, first-out basis) or market and adjusted for Reserves as the Administrative
Agent has previously indicated to the Borrower are deemed by the Administrative Agent to be appropriate, and (2) including
a report of any material variances or other results of Inventory counts performed by the Borrower since the last Inventory schedule
(including information regarding sales or other reductions, additions, returns, credits issued by the Borrower and complaints and
claims made against the Borrower);


 


(iii)        a
worksheet of calculations prepared by the Borrower to determine Eligible Accounts and Eligible Inventory, such worksheets detailing
the Accounts and Inventory excluded from Eligible Accounts and Eligible Inventory and the reason for such exclusion;


 


(iv)        a
reconciliation of the Borrower’s Accounts and Inventory between (A) the amounts shown in the Borrower’s general
ledger and financial statements and the reports delivered pursuant to clauses (i) and (ii) above and (B) the amounts
and dates shown in the reports delivered pursuant to clauses (i) and (ii) above and the Borrowing Base Certificate
delivered pursuant to clause (f) above as of such date; and


 


(v)         a
reconciliation of the loan balance per the Borrower’s general ledger to the loan balance under this Agreement;


 


(h)          as
soon as available but in any event within fifteen (15) days of the end of each calendar month and at such other times as may be
requested by the Administrative Agent, as of the month then ended, a schedule and aging of the Borrower’s accounts payable,
delivered electronically in a text formatted file acceptable to the Administrative Agent;


 


(i)          promptly
upon the Administrative Agent’s reasonable request:


 


(i)          copies
of specified invoices issued by the Borrower in connection with any Accounts, credit memos, shipping and delivery documents, and
other information related thereto;


 




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(ii)         copies
of specified purchase orders, invoices, and shipping and delivery documents in connection with any Inventory purchased by any Loan
Party; and


 


(iii)        a
schedule detailing the balance of all intercompany accounts of the Loan Parties;


 


(j)          promptly
following any request therefor, such other information regarding the operations, business affairs and financial condition of the
Borrower or any Restricted Subsidiary, or compliance with the terms of this Agreement, as the Administrative Agent may reasonably
request.


 


Documents required to be delivered pursuant
to clauses (a) and (b) of this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered
on the date on which such documents are (i) filed for public availability on the SEC’s Electronic Data Gathering and Retrieval
System, (ii) posted or the Borrower provides a link thereto on http://www.akorn.com; or (iii) posted on the Borrower’s behalf
on an Internet or intranet website, if any, to which the Administrative Agent has access (whether a commercial, third-party website
or whether sponsored by the Administrative Agent); provided that, the Borrower shall notify (which may be by telecopy or
electronic mail) the Administrative Agent of the filing of any such documents and provide to the Administrative Agent by electronic
mail electronic versions (i.e., soft copies) of such documents.


 


SECTION 5.02         Notices
of Material Events. The Borrower will furnish to the Administrative Agent (for distribution to
each Lender) prompt (but in any event within any time period that may be specified below) written notice of the following:


 


(a)          the
occurrence of any Default;


 


(b)          receipt
of any notice of any governmental investigation or any litigation or proceeding commenced or threatened against any Loan Party
that could reasonably be expected to result in a Material Adverse Effect;


 


(c)          any
loss, damage, or destruction to ABL First Priority Collateral in the amount of $5,000,000 or more, whether or not covered by insurance;


 


(d)          within
two (2) Business Days of receipt thereof, any and all default notices received under or with respect to any leased location,
public warehouse or third party processor where Inventory constituting Collateral with a value in excess of $5,000,000 is located;


 


(e)          all
amendments to the Term Loan Facility, together with a copy of each such amendment;


 


(f)          within
two (2) Business Days after the occurrence thereof, any Loan Party entering into a Swap Agreement with a notional amount of
$5,000,000 or more or an amendment thereto, together with copies of all agreements evidencing such Swap Agreement or amendment;


 


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


 


(h)          any
other development that results, or could reasonably be expected to result, in a Material Adverse Effect.


 




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Each notice delivered
under this Section shall be accompanied by a statement of a Financial Officer or other executive 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.
Information required to be delivered pursuant to clause (b), (e) and (g) of this Section shall be deemed to have been delivered
if such information, or one or more annual or quarterly or other periodic reports containing such information, is (i) filed for
public availability on the SEC’s Electronic Data Gathering and Retrieval System, (ii) posted or the Borrower provides a link
thereto on http://www.akorn.com; or (iii) posted on the Borrower’s behalf on an Internet or intranet website, if any, to
which the Administrative Agent and the Lenders have access (whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that, the Borrower shall notify (which may be by telecopy or electronic mail) the Administrative
Agent of the filing of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e.,
soft copies) of such documents.


 


SECTION 5.03         Existence;
Conduct of Business. Each Loan Party will, and will cause each Restricted Subsidiary to, (a) do
or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights,
qualifications, licenses, permits, franchises, governmental authorizations, intellectual property rights, licenses and permits
material to the conduct of its business, and maintain all requisite authority to conduct its business in each jurisdiction in which
its business is conducted, provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution
permitted under Section 6.03, and (b) carry on and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently conducted.


 


SECTION 5.04         Payment
of Obligations. Each Loan Party will, and will cause each Restricted Subsidiary to, pay or discharge
all Material Indebtedness and all other material liabilities and obligations, including Taxes, 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,
(b) such Loan Party or Restricted Subsidiary has set aside on its books adequate reserves with respect thereto in accordance
with GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material
Adverse Effect; provided, however, each Loan Party will, and will cause each Restricted Subsidiary to, remit withholding
taxes and other payroll taxes to appropriate Governmental Authorities as and when claimed to be due, notwithstanding the foregoing
exceptions.


 


SECTION 5.05         Maintenance
of Properties. Each Loan Party will, and will cause each Restricted Subsidiary to, keep and maintain
all property material to the conduct of its business in good working order and condition, casualty, condemnation and ordinary wear
and tear excepted.


 


SECTION 5.06         Books
and Records; Inspection Rights. Each Loan Party will, and will cause each Restricted Subsidiary
to, (a) 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 and (b) permit any representatives designated by the Administrative Agent, upon
reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, environmental
assessment reports and Phase I or Phase II studies, and to discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested; provided, that, other than with respect
to any such visits and inspections during the continuation of an Event of Default, the Loan Parties shall not be obligated to reimburse
the Administrative Agent for the expenses of more than one (1) such visit or inspection during any calendar year. Each Loan Party
acknowledges that the Administrative Agent, after exercising its rights of inspection, will prepare and distribute to the Lenders
certain Reports pertaining to each Loan Party’s assets (including, without limitation, the results of such inspection) for
internal use by the Administrative Agent and the Lenders (and it is understood and agreed that any Lender may, at its own cost
and expense, participate in any inspections permitted pursuant to this Section 5.06).


 




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SECTION 5.07         Compliance
with Laws and Material Contractual Obligations. Each Loan Party will, and will cause each Restricted
Subsidiary to, (i) comply with all Requirements of Law applicable to it or its property (including without limitation Environmental
Laws) and (ii) perform in all material respects its obligations under material agreements to which it is a party, except,
in each case, where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower,
its Subsidiaries and their respective directors, officers, employees and agents with Anti-Corruption Laws and applicable Sanctions.


 


SECTION 5.08         Use
of Proceeds. The proceeds of the Loans and the Letters of Credit will be used only to finance
the working capital needs of, and for general corporate purposes of, the Borrower and its Subsidiaries (including the making of
Permitted Acquisitions, investments, Restricted Payments and other transactions not prohibited by the Loan Documents) and to pay
transactions costs related to the Transactions. No part of the proceeds of any Loan and no Letter of Credit will be used, whether
directly or indirectly, (i) for any purpose that entails a violation of any of the Regulations of the Board, including Regulations
T, U and X or (ii) to make any Acquisition other than Permitted Acquisitions. The Borrower will not request any Borrowing
or Letter of Credit, and the Borrower shall not use, and shall procure that its Subsidiaries and its or their respective directors,
officers, employees and agents shall not use, the proceeds of any Borrowing or Letter of Credit (A) 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, (B) for the purpose of funding, financing or facilitating any activities, business or transaction
of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any
Sanctions applicable to any party hereto.


 


SECTION 5.09         Insurance.
Each Loan Party will, and will cause each Restricted Subsidiary to, maintain with financially sound
and reputable carriers having a financial strength rating of at least A- by A.M. Best Company (a) insurance in such amounts
(with no greater risk retention) and against such risks (including, without limitation: loss or damage by fire and loss in transit;
theft, burglary, pilferage, larceny, embezzlement, and other criminal activities; business interruption; and general liability)
and such other hazards, as is customarily maintained by companies of established repute engaged in the same or similar businesses
operating in the same or similar locations and (b) all insurance required pursuant to the Collateral Documents. The Borrower
will furnish to the Lenders, upon request of the Administrative Agent, information in reasonable detail as to the insurance so
maintained.


 


SECTION 5.10         Appraisals.
At any time that the Administrative Agent requests, each Loan Party will provide the Administrative
Agent with appraisals or updates thereof of its Inventory, from an appraiser selected and engaged by the Administrative Agent,
and prepared on a basis reasonably satisfactory to the Administrative Agent, such appraisals and updates to include, without limitation,
information required by any applicable Requirement of Law. Only one (1) such Inventory appraisal per calendar year shall be at
the sole expense of the Borrower; provided that (i) two (2) such Inventory appraisals per calendar year shall be at the
sole expense of the Borrower if the Excess Availability is less than the Excess Availability Threshold Amount at the time such
Inventory appraisal is initiated, and (ii) after the occurrence and during the continuance of an Event of Default for which the
Administrative Agent shall have provided notice thereof to the Borrower, there shall be no limitation on the number or frequency
of appraisals that shall be at the sole expense of the Borrower (and it is understood and agreed that any Lender may, at its own
cost and expense, participate in any such Inventory appraisals). Each Loan Party acknowledges that the Administrative Agent, after
obtaining any such appraisal, will prepare and distribute to the Lenders certain Reports pertaining to such appraisal (including,
without limitation, copies of the appraisal or updates thereof) for internal use by the Administrative Agent and the Lenders.


 




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SECTION 5.11         Field Examinations Once
in each twelve month period, at the request of the Administrative Agent, the Loan Parties will permit, upon reasonable
notice, the Administrative Agent to conduct a field examination to ensure the adequacy of Collateral included in the
Borrowing Base and related reporting and control systems; provided, however that (a) if an Event of Default has
occurred and is continuing, there shall be no limitation on the number or frequency of field examinations and (b) if Excess
Availability is less than the Excess Availability Threshold Amount, then two times during the twelve month period commencing
with any month during which clause (b) is triggered, at the request of the Administrative Agent, the Loan Parties will
permit the Administrative Agent to conduct such examinations. For purposes of this Section 5.11, it is understood and
agreed that a single field examination may be conducted at multiple relevant sites and involve one or more relevant Loan
Parties and their assets. All such field examinations shall be at the sole expense of the Loan Parties (it being understood
and agreed that any Lender may, at its own cost and expense, participate in such appraisals). For the avoidance of doubt, any
limitations on field examinations, including with respect to the frequency thereof, set forth in this Section
5.11 shall not limit or otherwise modify the Borrower’s obligations pursuant to Section 5.06. Each Loan
Party acknowledges that the Administrative Agent, after conducting any such field examination, will prepare and distribute to
the Lenders certain Reports pertaining to such field examination (including, without limitation, copies of the results of
such field examination) for internal use by the Administrative Agent and the Lenders.


 


SECTION 5.12          [Intentionally
Omitted].


 


SECTION 5.13          Additional
Collateral; Further Assurances 


 


(a)          Subject
to applicable Requirement of Law, the Borrower and each Restricted Subsidiary that is a Loan Party will cause each of its Domestic
Subsidiaries formed or acquired after the Effective Date in accordance with the terms of this Agreement to become a Loan Party
by executing a Joinder Agreement. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan
Guarantor hereunder and thereupon shall have all of the rights, benefits, duties and obligations in such capacity under the Loan
Documents and (ii) on and after the Effective Date, will grant Liens to the Administrative Agent, for the benefit of the Administrative
Agent, the Lenders and the other Secured Parties, in any property of such Loan Party which constitutes Collateral, including any
parcel of real property located in the U.S. owned by any Loan Party.


 


(b)          The
Borrower and each Restricted Subsidiary that is a Loan Party will cause (i)100% of the issued and outstanding Equity Interests
of each of its Domestic Subsidiaries and (ii) 65% (or such greater percentage that, due to a change in applicable law after
the Effective Date, (1) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined
for U.S. federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s U.S. parent and (2)
could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Equity Interests
entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity
Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2) in each Foreign Subsidiary
directly owned by the Borrower or any Domestic Subsidiary that is a Restricted Subsidiary to be subject at all times to a first
priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or such
other security documents as the Administrative Agent shall reasonably request.


 




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(c)          Without
limiting the foregoing, each Loan Party will, and will cause each Restricted Subsidiary to, execute and deliver, or cause to be
executed and delivered, to the Administrative Agent such documents, agreements and instruments, and 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 Sections 4.01 and 4.02, as applicable),
which may be required by any Requirement of 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.


 


(d)          If
any material assets (including any real property or improvements thereto or any interest therein) are acquired by the Borrower
or any Restricted Subsidiary that is a Loan Party after the Effective Date (other than assets constituting Collateral under the
Security Agreement that become subject to the Lien under the Security Agreement upon acquisition thereof), the Borrower will (i) notify
the Administrative Agent and the Lenders thereof and, if requested by the Administrative Agent or the Required Lenders, cause such
assets to be subjected to a Lien securing the Secured Obligations and (ii) take, and cause each Restricted Subsidiary that
is a Loan Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect
such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.


 


(e)          Without
limiting the generality of the foregoing, each Loan Party shall deliver Mortgages and Mortgage Instruments with respect to real
property of such Loan Party that constitutes Collateral to the extent, and within such time period as is, reasonably required by
the Administrative Agent.


 


(f)          Within
sixty (60) days following the Effective Date (or such later date as the Administrative Agent agrees to in its sole discretion),
the Loan Parties shall deliver to the Administrative Agent (x) updated versions of the exhibits to the Security Agreement (which
exhibits shall be current as of the date of delivery thereof) and (y) Confirmatory Grants of Security Interest (as defined in the
Security Agreement) with respect to any intellectual property constituting Collateral for which no filing has been made in the
United States Patent and Trademark Office or the United States Copyright Office, as applicable. Within forty five (45) days following
the Effective Date (or such later date as the Administrative Agent agrees to in its sole discretion), the Loan Parties shall deliver
to the Administrative Agent certificates of insurance listing the Administrative Agent as (x) lender loss payee for the property
casualty insurance policies of the Borrower and the Subsidiary Guarantors, together with separate lender loss payable endorsements
and (y) additional insured with respect to the liability insurance policies of the Borrower and the Subsidiary Guarantors,
together with separate additional insured endorsements.


 


SECTION 5.14.          Designation
of Subsidiaries. The Borrower may, at any time from and after the Effective Date, designate
any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided
that (i) immediately before and after such designation, no Default or Event of Default shall have occurred and be continuing,
(ii) immediately after giving effect to such designation, the Borrower shall be in compliance with the covenant set forth
in Section 6.13 on a pro forma basis (and as a condition precedent to the effectiveness of any such designation,
the Borrower shall deliver to the Administrative Agent a certificate setting forth in reasonable detail the calculations demonstrating
such compliance), (iii) no Restricted Subsidiary may be designated as an Unrestricted Subsidiary if it was previously designated
as an Unrestricted Subsidiary pursuant to this Section 5.14 and (iv) if a Restricted Subsidiary is being designated
as an Unrestricted Subsidiary hereunder, such Restricted Subsidiary, together with all other Unrestricted Subsidiaries as of such
date of designation (the “Designation Date”), must not have contributed greater than five percent (5%) of the
Borrower’s EBITDA (calculated inclusive of all Unrestricted Subsidiaries), as of the most recently ended fiscal quarter of
the Borrower, for the period of four consecutive fiscal quarters then ended, for which financial statements have been delivered
pursuant to Section 5.01. The designation of any Restricted Subsidiary as an Unrestricted Subsidiary after the Effective
Date shall constitute an investment by the applicable Loan Party therein at the date of designation in an amount equal to the fair
market value of the applicable Loan Party’s investment therein. The designation of any Unrestricted Subsidiary as a Restricted
Subsidiary after the Effective Date shall constitute (i) the incurrence at the time of designation of any investment, Indebtedness
or Liens of such Subsidiary existing at such time and (ii) a return on any investment by the applicable Loan Party in Unrestricted
Subsidiaries pursuant to the preceding sentence in an amount equal to the fair market value at the date of such designation of
such Loan Party’s investment in such Subsidiary. Notwithstanding the foregoing, the Borrower shall not be permitted to be
an Unrestricted Subsidiary.




 



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Article
VI.


 


Negative Covenants


 


Until the Revolving
Line Portions shall have expired or been terminated and the principal of and interest on each Loan and all fees, expenses and other
amounts payable under any Loan Document shall have been paid in full and all Letters of Credit shall have expired or terminated,
in each case without any pending draw, and all LC Disbursements shall have been reimbursed, each Loan Party executing this Agreement
covenants and agrees from and after the Effective Date, jointly and severally with all of the other Loan Parties, with the Lenders
that:


 


Section
6.01         Indebtedness. No Loan Party
will, nor will it permit any Restricted Subsidiary to, create, incur, assume or suffer to exist any Indebtedness, except:


 


(a)          the
Secured Obligations;


 


(b)          the
Term Loans incurred pursuant to the Term Loan Agreement;


 


(c)          Indebtedness
existing on the Effective Date and set forth in Schedule 6.01 and extensions, renewals, refinancings and replacements
of any such Indebtedness in accordance with clause (g) hereof;


 


(d)          Indebtedness
of the Borrower to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary,
provided that (i) Indebtedness of any Restricted Subsidiary that is not a Loan Party to the Borrower or any Restricted
Subsidiary that is a Loan Party shall be subject to Section 6.04 and (ii) Indebtedness of any Loan Party to any
Restricted Subsidiary that is not a Loan Party shall be subordinated to the Secured Obligations on terms reasonably satisfactory
to the Administrative Agent;


 


(e)          Guarantees
by the Borrower of Indebtedness of any Restricted Subsidiary and by any Restricted Subsidiary of Indebtedness of the Borrower or
any other Restricted Subsidiary, provided that (i) the Indebtedness so Guaranteed is permitted by this Section 6.01,
(ii) Guarantees by the Borrower or any Restricted Subsidiary that is a Loan Party of Indebtedness of any Restricted Subsidiary
that is not a Loan Party shall be subject to Section 6.04 and (iii) Guarantees permitted under this clause (e)
shall be subordinated to the Secured Obligations of the applicable Restricted Subsidiary on the same terms as the Indebtedness
so Guaranteed is subordinated to the Secured Obligations;


 


(f)          Indebtedness
of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital
assets (whether or not constituting purchase money Indebtedness), including Capital Lease Obligations and any Indebtedness assumed
in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof,
and extensions, renewals and replacements of any such Indebtedness in accordance with clause (g) below; provided
that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction
or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (f) together with
any Refinance Indebtedness in respect thereof permitted by clause (g) below, shall not exceed $25,000,000 at any time
outstanding;


 




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(g)          Indebtedness
which represents extensions, renewals, refinancing or replacements (such Indebtedness being so extended, renewed, refinanced or
replaced being referred to herein as the “Refinance Indebtedness”) of any of the Indebtedness described in clauses
(b), (c) and (f) and (i) and (k) hereof (such Indebtedness being referred to herein as the “Original Indebtedness”);
provided that (i) such Refinance Indebtedness does not increase the principal amount or interest rate (other than the then-prevailing
customary interest rate for Indebtedness of such type of Refinance Indebtedness) of the Original Indebtedness, (ii) any Liens
securing such Refinance Indebtedness are not extended to any additional property of any Loan Party or any of its Restricted Subsidiaries,
(iii) no Loan Party or any of its Restricted Subsidiaries that is not originally obligated with respect to repayment of such
Original Indebtedness is required to become obligated with respect to such Refinance Indebtedness, (iv) such Refinance Indebtedness
does not result in a shortening of the average weighted maturity of such Original Indebtedness, (v) the terms of such Refinance
Indebtedness other than fees and interest are not less favorable to the obligor thereunder than the original terms of such Original
Indebtedness and (vi) if such Original Indebtedness was subordinated in right of payment to the Secured Obligations, then
the terms and conditions of such Refinance Indebtedness must include subordination terms and conditions that are at least as favorable
to the Administrative Agent and the Lenders as those that were applicable to such Original Indebtedness;


 


(h)          Indebtedness
owed to any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or
liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in each case incurred in the ordinary
course of business;


 


(i)           Indebtedness
of any Loan Party in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case
provided in the ordinary course of business;


 


(j)           Subordinated
Indebtedness with terms and conditions reasonably acceptable to the Administrative Agent;


 


(k)           Indebtedness
of any Person that becomes a Subsidiary after the Effective Date; provided that (i) such Indebtedness exists at the
time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary
and (ii) the aggregate principal amount of Indebtedness permitted by this clause (k), together with any Refinance
Indebtedness in respect thereof permitted by clause (g) above, shall not exceed $25,000,000 at any time outstanding;
and


 


(l)           other
unsecured Indebtedness in an aggregate principal amount not exceeding $300,000,000 at any time outstanding; provided that
(i) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of principal prior
to, the date that is 91 days after the Maturity Date (it being understood that any provision requiring an offer to purchase such
Indebtedness as a result of a change of control, delisting, or asset sale or any provision permitting holders to convert such Indebtedness
shall not violate the foregoing restriction), (ii) such Indebtedness is not guaranteed by any Restricted Subsidiary of the Borrower
other than the Loan Guarantors (which guarantees, if such Indebtedness is subordinated, shall be expressly subordinated to the
Secured Obligations on terms not less favorable to the Lenders than the subordination terms of such Subordinated Indebtedness)
and (iii) such Indebtedness is issued on then-market terms and restrictions customary for Indebtedness of such type and the restrictions
imposed thereby will not adversely affect in any material respect the obligation or ability of the Borrower or any other Loan Party
to make any payments required hereunder or otherwise satisfy the Obligations, in each case as determined in the good faith judgment
of the Borrower.


 




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Section
6.02         Liens. No Loan Party will,
nor will it permit any Restricted Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now
owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect
of any thereof, except:


 


(a)          Liens
created pursuant to any Loan Document;


 


(b)          Permitted
Encumbrances;


 


(c)          Liens
on the Collateral securing Indebtedness incurred pursuant to Section 6.01(b), and any extensions, renewals and replacements
of any such Indebtedness in respect thereof in accordance with Section 6.01(g), in each case, to the extent such Indebtedness
is subject to the terms of the Intercreditor Agreement;


 


(d)          any
Lien on any property or asset of the Borrower or any Restricted Subsidiary existing on the Effective Date and set forth in Schedule 6.02;
provided that (i) such Lien shall not apply to any other property or asset of the Borrower or such Restricted Subsidiary
and (ii) such Lien shall secure only those obligations which it secures on the Effective Date, and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount thereof;


 


(e)          Liens
on fixed or capital assets acquired, constructed or improved by the Borrower or any Restricted Subsidiary; provided that
(i) such Liens secure Indebtedness permitted by clause (f) of Section 6.01, (ii) such Liens and the
Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction
or improvement, (iii) the Indebtedness secured thereby does not exceed 100% of the cost of acquiring, constructing or improving
such fixed or capital assets and (iv) such Liens shall not apply to any other property or assets of the Borrower or such Restricted
Subsidiary;


 


(f)          any
Lien existing on any property or asset (other than Accounts and Inventory) prior to the acquisition thereof by the Borrower or
any Restricted Subsidiary or existing on any property or asset (other than Accounts and Inventory) of any Person that becomes a
Loan Party after the Effective Date prior to the time such Person becomes a Loan Party; provided that (i) such Lien
is not created in contemplation of or in connection with such acquisition or such Person becoming a Loan Party, as the case may
be, (ii) such Lien shall not apply to any other property or assets of the Loan Party and (iii) such Lien shall secure
only those obligations which it secures on the date of such acquisition or the date such Person becomes a Loan Party, as the case
may be, and extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof;


 


(g)          Liens
of a collecting bank arising in the ordinary course of business under Section 4-208 of the UCC in effect in the relevant
jurisdiction covering only the items being collected upon;


 


(h)          Liens
arising out of Sale and Leaseback Transactions permitted by Section 6.06;


 


(i)           Liens
granted by a Restricted Subsidiary that is not a Loan Party in favor of the Borrower or another Loan Party in respect of Indebtedness
owed by such Restricted Subsidiary; and


 




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(j)           Liens
on assets (not constituting Collateral) of the Borrower and its Restricted Subsidiaries not otherwise permitted above so long as
the aggregate principal amount of the Indebtedness and other obligations subject to such Liens does not at any time exceed $25,000,000.


 


Notwithstanding the
foregoing, none of the Liens permitted pursuant to this Section 6.02 may at any time attach to any Loan Party’s
(1) Accounts, other than those permitted under clause (a) of the definition of Permitted Encumbrance and clauses (a)
and (c) above (subject to the terms of the Intercreditor Agreement) and (2) Inventory, other than those permitted under
clauses (a) and (b) of the definition of Permitted Encumbrance and clauses (a) and (c) above (subject to
the terms of the Intercreditor Agreement).


 


Section
6.03         Fundamental Changes.


 


(a)          No
Loan Party will, nor will it permit any Restricted Subsidiary to, merge into or consolidate with any other Person, or permit any
other Person to merge into or consolidate with it, or consummate a Division as the Dividing Person, or liquidate or dissolve, except
that, if at the time thereof and immediately after giving effect thereto no Event of Default shall have occurred and be continuing:


 


(i)          any
Restricted Subsidiary of the Borrower may merge into the Borrower in a transaction in which the Borrower is the surviving corporation;


 


(ii)         any
Loan Party (other than the Borrower) may merge into any other Loan Party in a transaction in which the surviving entity is a Loan
Party; and


 


(iii)        any
Subsidiary that is an LLC may consummate a Division as the Dividing Person if, immediately upon the consummation of the Division,
the assets of the applicable Dividing Person are held by one or more Loan Parties at such time, or, with respect to assets not
so held by one or more Loan Parties, such Division, in the aggregate, would otherwise result in a disposition permitted by Section
6.05; and


 


(iv)        any
Restricted Subsidiary that is not a Loan Party may liquidate or dissolve if the Borrower determines in good faith that such liquidation
or dissolution is in the best interests of the Borrower and is not materially disadvantageous to the Lenders; provided that any
such merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger shall not be permitted unless
also permitted by Section 6.04;


 


provided that
any such merger, Division or consolidation involving a Person that is not a wholly-owned Subsidiary immediately prior to such merger,
Division or consolidation shall not be permitted unless it is also permitted by Section 6.04.


 


(b)          No
Loan Party will, nor will it permit any Restricted Subsidiary to, engage in any business other than businesses of the type conducted
by the Borrower and its Subsidiaries on the Effective Date and businesses reasonably related thereto.


 


(c)          No
Loan Party will change its fiscal year from the basis in effect on the Effective Date without the consent of the Administrative
Agent.


 




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Section
6.04         Investments, Loans, Advances, Guarantees and Acquisitions.
No Loan Party will, nor will it permit any Restricted Subsidiary to, (i) purchase, hold or acquire
(including pursuant to any merger or consolidation with, or as a Division Successor pursuant to the Division of, any Person that
was not a wholly owned Subsidiary prior to such merger, consolidation or Division) any evidences of Indebtedness or Equity Interests
or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist
any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any
other Person, (ii) purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person
constituting a business unit, division, product line (including rights in respect of any drug or other pharmaceutical product)
or line of business of such Person (whether through purchase of assets, merger or otherwise), or (iii) acquire an exclusive long-term
license of rights to a drug or other product line of any Person, except:


 


(a)          Permitted
Investments, subject to control agreements in favor of the Administrative Agent for the benefit of the Secured Parties or otherwise
subject to a perfected security interest in favor of the Administrative Agent for the benefit of the Secured Parties;


 


(b)          investments
in existence on the Effective Date and described in Schedule 6.04;


 


(c)          investments
by the Borrower and the Restricted Subsidiaries in Equity Interests in their respective Subsidiaries, provided that (A) any
such Equity Interests held by a Loan Party shall be pledged pursuant to the Security Agreement (subject to the limitations applicable
to common stock of a Foreign Subsidiary referred to in Section 5.13) and (B) the aggregate amount of investments
by Loan Parties in Subsidiaries that are not Loan Parties (together with outstanding intercompany loans permitted under clause
(B) to the proviso to Section 6.04(d) and outstanding Guarantees permitted under the proviso to Section 6.04(e))
shall not exceed $7,500,000 at any time outstanding (in each case determined without regard to any write-downs or write-offs);


 


(d)          loans
or advances made by any Loan Party to any Subsidiary and made by any Subsidiary to a Loan Party or any other Subsidiary, provided
that (A) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged pursuant to the
Security Agreement and (B) the amount of such loans and advances made by Loan Parties to Subsidiaries that are not Loan Parties
(together with outstanding investments permitted under clause (B) to the proviso to Section 6.04(c) and
outstanding Guarantees permitted under the proviso to Section 6.04(e)) shall not exceed $7,500,000 at any time outstanding
(in each case determined without regard to any write-downs or write-offs);


 


(e)          Guarantees
constituting Indebtedness permitted by Section 6.01, provided that the aggregate principal amount of Indebtedness of Restricted
Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party (together with outstanding investments permitted under
clause (B) to the proviso to Section 6.04(c) and outstanding intercompany loans permitted under clause (B)
to the proviso to Section 6.04(d)) shall not exceed $7,500,000 at any time outstanding (in each case determined without
regard to any write-downs or write-offs);


 


(f)          loans
or advances made by a Loan Party to its employees on an arms-length basis in the ordinary course of business consistent with past
practices for travel and entertainment expenses, relocation costs and similar purposes up to a maximum of $2,000,000 in the aggregate
at any one time outstanding;


 


(g)          notes
payable, or stock or other securities issued by Account Debtors to a Loan Party pursuant to negotiated agreements with respect
to settlement of such Account Debtor’s Accounts in the ordinary course of business;


 


(h)          investments
in the form of Swap Agreements permitted by Section 6.07;


 




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(i)           investments
of any Person existing at the time such Person becomes a Subsidiary of the Borrower or consolidates or merges with the Borrower
or any of the Restricted Subsidiaries (including in connection with a permitted acquisition) so long as such investments were not
made in contemplation of such Person becoming a Subsidiary or of such merger;


 


(j)           investments
received in connection with the disposition of assets permitted by Section 6.05; and


 


(k)          investments
constituting deposits described in clauses (c) and (d) of the definition of the term “Permitted Encumbrances”;


 


(l)           Permitted
Acquisitions; and


 


(m)         other
investments, loans or advances; provided that, (i) both before and after giving pro forma effect to any such investment,
loan or advance pursuant to this clause (m), no Default or Event of Default shall have occurred and be continuing and the
Payment Condition shall be satisfied with respect to such investment, loan or advance and (ii) any Acquisition made pursuant to
this clause (m) must constitute a Permitted Acquisition.


 


Section
6.05         Asset Sales. No Loan Party
will, nor will it permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose of any asset, including any Equity
Interest owned by it, nor will the Borrower permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted
Subsidiary (other than to the Borrower or another Subsidiary in compliance with Section 6.04), except:


 


(a)          (i)
sales, transfers and dispositions of (A) Inventory in the ordinary course of business and (B) used, obsolete, worn out
or surplus Equipment or property in the ordinary course of business and (ii) sales, transfers, dispositions or exclusive long-term
licenses of property to the extent that (A) such property is concurrently exchanged for credit against the purchase price of similar
replacement property or (B) the proceeds of such sales, transfers, dispositions or licenses are promptly applied to the purchase
price of such replacement property;


 


(b)          sales,
transfers and dispositions of assets to the Borrower or any Restricted Subsidiary, provided that any such sales, transfers
or dispositions involving a Restricted Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09;


 


(c)          sales,
transfers and dispositions of Accounts in connection with the compromise, settlement or collection thereof;


 


(d)          sales,
transfers and dispositions of Permitted Investments and other investments permitted by clauses (i) and (k) of
Section 6.04;


 


(e)          Sale
and Leaseback Transactions permitted by Section 6.06;


 


(f)          dispositions
resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar
proceeding of, any property or asset of the Borrower or any Restricted Subsidiary;


 


(g)          sales,
transfers and other dispositions consisting of divestitures required by applicable law or any Governmental Authority or other regulatory
authority; and


 




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(h)          sales,
transfers and other dispositions of assets (other than Equity Interests in a Restricted Subsidiary unless all Equity Interests
in such Restricted Subsidiary are sold) that are not permitted by any other paragraph of this Section, provided that the aggregate
book value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (h) during any fiscal year
of the Borrower shall not exceed 10.0% of Total Assets as of the most recently ended fiscal year of the Borrower (determined by
reference to the Borrower’s financial statements most recently delivered pursuant to Section 5.01(a) or, if prior to the
date of the delivery of the first financial statements to be delivered pursuant to such Section, the annual financial statements
referred to in Section 3.04(a));


 


provided that
all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by paragraphs (b) and (f) above)
shall be made for fair value and for at least 75% cash consideration.


 


Section
6.06         Sale and Leaseback Transactions. No
Loan Party will, nor will it permit any Restricted Subsidiary to, enter into any arrangement, directly or indirectly, whereby it
shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired,
and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred (a “Sale and Leaseback Transaction”), except for any such sale of any fixed
or capital assets by the Borrower or any Restricted Subsidiary that is made for cash consideration in an amount not less than the
fair value of such fixed or capital asset and is consummated within 90 days after the Borrower or such Restricted Subsidiary
acquires or completes the construction of such fixed or capital asset.


 


Section
6.07         Swap Agreements. No Loan Party
will, nor will it permit any Restricted Subsidiary to, enter into any Swap Agreement, except (a) Swap Agreements entered into
to hedge or mitigate risks to which the Borrower or any Restricted Subsidiary has actual or reasonably anticipated exposure (other
than those in respect of Equity Interests of the Borrower or any Restricted Subsidiary), and (b) Swap Agreements entered into
in order to effectively cap, collar or exchange interest rates (from floating to fixed rates, from one floating rate to another
floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Restricted Subsidiary.


 


Section
6.08         Restricted Payments; Subordinated Indebtedness.


 


(a)          No
Loan Party will, nor will it permit any Restricted Subsidiary to, declare or make, or agree to declare or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except (i) the Borrower may declare and
pay dividends with respect to its common stock payable solely in additional shares of its common stock, and, with respect to its
preferred stock, payable solely in additional shares of such preferred stock or in shares of its common stock (in each case, other
than Disqualified Equity Interests), (ii) Restricted Subsidiaries may declare and pay dividends ratably with respect to their
Equity Interests, (iii) the Borrower may make Restricted Payments, not exceeding $1,000,000 during any fiscal year, pursuant
to and in accordance with stock option plans or other benefit plans for management or employees of the Borrower and its Restricted
Subsidiaries, and (iv) each Loan Party may declare or make, or agree to pay or make, directly or indirectly, any other Restricted
Payments so long as, both before and after giving pro forma effect to such Restricted Payment (x) no Default or Event of Default
shall have occurred and be continuing and (y) the Payment Condition shall be satisfied with respect to such Restricted Payments.


 




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(b)          No
Loan Party will, nor will it permit any Restricted Subsidiary to, make or agree to pay or make, directly or indirectly, (i) any
payment or other distribution (whether in cash, securities or other property) of or in respect of principal of or interest on any
Subordinated Indebtedness or other Indebtedness that is junior in right of payment to the Loans (collectively, the “Specified
Indebtedness”) other than payment of regularly scheduled interest and principal payments as and when due (including at
maturity) in respect of any Specified Indebtedness (excluding payments in respect of Subordinated Indebtedness prohibited by the
subordination provisions thereof), or (ii) any payment or other distribution (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 Specified Indebtedness unless, in the case of each of the foregoing clauses (i) and (ii), both before and after giving pro
forma effect to such payment (x) no Default or Event of Default shall have occurred and be continuing and (y) the Payment Condition
shall be satisfied with respect to such payment. Furthermore, no Loan Party will, nor will it permit any Restricted Subsidiary
to, amend the documents evidencing any Specified Indebtedness (or any replacements, substitutions, extensions or renewals thereof)
or pursuant to which such Specified Indebtedness is issued where such amendment, modification or supplement amends, modifies or
adds any provisions thereof in a manner which is (i) materially adverse to the applicable Loan Party and such Restricted Subsidiary
and/or the Lenders or (ii) more onerous in any material respect than the existing applicable provisions in such documents or the
applicable provisions set forth in this Agreement, in each case as determined by the board of directors (including an authorized
committee thereof) of the applicable Loan party in good faith.


 


Section
6.09         Transactions with Affiliates. No
Loan Party will, nor will it permit any Restricted Subsidiary to, sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of
its Affiliates, except (a) transactions that (i) are in the ordinary course of business and (ii) are at prices and
on terms and conditions not less favorable to such Loan Party or such Restricted Subsidiary than could be obtained on an arm’s-length
basis from unrelated third parties, (b) transactions between or among the Loan Parties not involving any other Affiliate,
(c) any investment permitted by Sections 6.04(c) or 6.04(d), (d) any Indebtedness permitted under Section 6.01(d),
(e) any Restricted Payment permitted by Section 6.08, (f) loans or advances to employees permitted under
Section 6.04, (g) the payment of reasonable fees to directors of the Borrower or any Restricted Subsidiary who
are not employees of the Borrower or any Restricted Subsidiary, and compensation and employee benefit arrangements paid to, and
indemnities provided for the benefit of, directors, officers or employees of the Borrower or its Subsidiaries in the ordinary course
of business and (h) any issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant
to, or the funding of, employment agreements, stock options and stock ownership plans approved by the Borrower’s board of
directors.


 




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Section
6.10         Restrictive Agreements. No
Loan Party will, nor will it permit any Restricted Subsidiary to, directly or indirectly, enter into, incur or permit to exist
any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of such Loan Party
or any Restricted Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (b) the ability
of any Restricted Subsidiary to pay dividends or other distributions with respect to any of its Equity Interests or to make or
repay loans or advances to the Borrower or any other Restricted Subsidiary or to Guarantee Indebtedness of the Borrower or any
other Restricted Subsidiary; provided that (i) the foregoing shall not apply to restrictions and conditions imposed
by any Requirement of Law or by any Loan Document, (ii) the foregoing shall not apply to restrictions and conditions existing
on the Effective Date identified on Schedule 6.10 (but shall apply to any extension or renewal of, or any amendment
or modification expanding the scope of, any such restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (iv) the foregoing
shall not apply to restrictions and conditions imposed by the Term Loan Agreement or any agreement or document governing or evidencing
refinancing Indebtedness in respect of the Term Loans permitted under Section 6.01(g), provided that the restrictions and
conditions contained in any such agreement or document are not less favorable to the Lenders than the restrictions and conditions
imposed by the Term Loan Agreement, (v) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply
only to the property or assets securing such Indebtedness, (vi) clause (a) of the foregoing shall not apply to
customary provisions in leases and other contracts restricting the assignment thereof, (vii) the foregoing shall not apply to customary
restrictions and conditions arising in connection with any sale, transfer, lease or disposition permitted by Section 6.05, (viii)
the foregoing shall not apply to any restrictions or conditions set forth in any agreement in effect at any time any Person becomes
a Restricted Subsidiary (but not any modification or amendment expanding the scope of any such restriction or condition); provided,
that such agreement was not entered into in contemplation of such Person becoming a Restricted Subsidiary and the restriction or
condition set forth in such agreement does not apply to the Borrower or any other Restricted Subsidiary, (ix) the foregoing shall
not apply to restrictions imposed by any agreement governing Indebtedness entered into on or after the Effective Date and permitted
under Section 6.01 that are, taken as a whole, in the good faith judgment of the Borrower, no more restrictive with respect to
the Borrower or any Restricted Subsidiary than customary market terms for Indebtedness of such type, so long as the Borrower shall
have determined in good faith that such restrictions will not adversely affect in any material respect the obligation or ability
of the Borrower or any other Loan Party to make any payments required hereunder or otherwise satisfy the Obligations, (x) the foregoing
shall not apply to restrictions or conditions contained in any agreements governing any purchase money Liens or Capital Lease Obligations
otherwise permitted hereby (in which case, any prohibition or limitation shall only be effective against the assets financed thereby
and proceeds thereof), (xi) the foregoing shall not apply to restrictions or conditions with respect to cash collateral so long
as the Lien in respect of such cash collateral is permitted under Section 6.02, (xii) the foregoing shall not apply to customary
net worth provisions contained in real property leases or licenses of intellectual property, so long as the Borrower has determined
in good faith that such provisions could not reasonably be expected to impair the ability of the Borrower and the other Loan Parties
to make any payments required hereunder or otherwise satisfy the Obligations, (xiii) the foregoing shall not apply to restrictions
under agreements evidencing or governing or otherwise relating to Indebtedness of Restricted Subsidiaries that are not Loan Guarantors
permitted under Section 6.01; provided, that such Indebtedness is only with respect to the assets of Subsidiaries that are
not Loan Guarantors and (xiv) the foregoing shall not apply to customary provisions in joint venture agreements, limited liability
company operating agreements, partnership agreements, stockholders agreements and other similar agreements.


 


Section
6.11         Amendment of Organizational Documents. No
Loan Party will, nor will it permit any Restricted Subsidiary to, amend, modify or waive any of its rights under its certificate
or articles of incorporation or organization, by-laws, operating, management or partnership agreement or other organizational documents,
to the extent any such amendment, modification or waiver would be adverse to the Lenders.


 


Section
6.12         [Intentionally Omitted.]


 


Section
6.13         Financial Covenant – Fixed Charge Coverage Ratio.
During each Compliance Period the Borrower will not permit the Fixed Charge Coverage Ratio, determined for any period of four
consecutive fiscal quarters ending on the last day of each fiscal quarter, to be less than 1.00 to 1.0, to be measured (a) on
the initial date of such Compliance Period for the most recent fiscal quarter then ended for which financial statements have been
delivered pursuant to Section 5.01, and (b) thereafter, as of the last day of each fiscal quarter ending during such Compliance
Period for which financial statements have been delivered pursuant to Section 5.01. 


 




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Article
VII.


 


Events of Default


 


If any of the following
events (“Events of Default”) shall occur:


 


(a)          the
Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and
as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise;


 


(b)          the
Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a)
of this Article) payable under this Agreement, when and as the same shall become due and payable, and such failure shall continue
unremedied for a period of five (5) Business Days;


 


(c)          any
representation or warranty made or deemed made by or on behalf of any Loan Party or Restricted Subsidiary in, or in connection
with, this Agreement or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder,
or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement
or any other Loan Document or any amendment or modification hereof or thereof or waiver hereunder or thereunder, shall prove to
have been materially incorrect when made or deemed made;


 


(d)          any
Loan Party shall fail to observe or perform any covenant, condition or agreement contained in Section 5.02(a), 5.03
(with respect to a Loan Party’s existence) or 5.08 or in Article VI;


 


(e)          any
Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those
which constitute a default under another Section of this Article), and such failure shall continue unremedied for
a period of (i) 5 days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Administrative
Agent (which notice will be given at the request of any Lender) if such breach relates to terms or provisions of Section 5.01,
5.02 (other than Section 5.02(a)), 5.03 through 5.07 or 5.09 of this Agreement or (ii) thirty (30)
days after the earlier of any Loan Party’s knowledge of such breach or notice thereof from the Administrative Agent (which
notice will be given at the request of any Lender) if such breach relates to terms or provisions of any other Section of this Agreement;


 


(f)          any
Loan Party or Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to the expiration of all grace
and notice periods applicable thereto);


 


(g)          any
event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (after giving effect to the expiration of all grace and notice periods applicable thereto) the holder or holders of
any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided that this
clause (g) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of
the property or assets securing such Indebtedness to the extent such sale or transfer is permitted by Section 6.05;


 




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(h)          an
involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization
or other relief in respect of a Loan Party or Restricted Subsidiary or its debts, or of a substantial part of its assets, under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Loan Party or Restricted Subsidiary or
for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for sixty (60) days
or an order or decree approving or ordering any of the foregoing shall be entered;


 


(i)          any
Loan Party or Restricted Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter
in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for such Loan Party or Restricted Subsidiary or for a substantial part
of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding
described in the preceding clause (h), (v) make a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;


 


(j)          any
Loan Party or Restricted Subsidiary shall become unable, admit in writing its inability, or publicly declare its intention not
to, or fail generally to pay its debts as they become due;


 


(k)          
(i) one or more judgments for the payment of money in an aggregate amount in excess of $20,000,000 (after giving effect to third-party
insurance from a creditworthy insurer that has not denied coverage) shall be rendered against any Loan Party, any Restricted Subsidiary
or any combination thereof and the same shall remain undischarged for a period of thirty (30) consecutive days during which
execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any
assets of any Loan Party or Restricted Subsidiary to enforce any such judgment; or (ii) any Loan Party or Restricted Subsidiary
shall fail within thirty (30) days to discharge one or more non-monetary judgments or orders which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect, which judgments or orders, in any such case, are not
stayed on appeal or otherwise being appropriately contested in good faith by proper proceedings diligently pursued;


 


(l)          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;


 


(m)          a
Change in Control shall occur;


 


(n)          the
occurrence of any “default” or “event of 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;


 


(o)          except
as permitted by the terms hereof or of any Collateral Document or otherwise expressly agreed upon pursuant to the Intercreditor
Agreement, (i) any Collateral Document shall for any reason fail to create a valid security interest in any material portion of
the Collateral purported to be covered thereby, or (ii) other than as a result of the failure of the Administrative Agent to take
any action within its control to maintain perfection of the Liens created in favor of the Administrative Agent for the benefit
of the Secured Parties pursuant to the Loan Documents (excluding any action based on facts or circumstances for which the Administrative
Agent has not been notified in accordance with the provisions of the Loan Documents), any Lien securing any Secured Obligation
shall cease to be a perfected, first priority Lien with respect to any material portion of the Collateral;


 




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(p)          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


 


(q)          any
material provision of any Loan Document for any reason ceases (other than pursuant to its express terms) to be valid, binding and
enforceable in accordance with its terms (or any Loan Party shall challenge the enforceability of any Loan Document or shall assert
in writing, or engage in any action or inaction based on any such assertion, that any provision of any of the Loan Documents has
ceased to be or otherwise is not valid, binding and enforceable in accordance with its terms).


 


then, and in every such event (other than
an event with respect to the Borrower described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice
to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Revolving
Line Portions, whereupon the Revolving Line Portions shall terminate immediately, (ii) declare the Loans then outstanding
to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), whereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately,
without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, and (iii) require
cash collateral for the LC Exposure in accordance with Section 2.06(j) hereof; and in the case of any event with respect
to the Borrower described in clause (h) or (i) of this Article, the Revolving Line Portions shall automatically
terminate and the principal of the Loans then outstanding and the cash collateral for the LC Exposure, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, in each
case, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. Upon the
occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required
Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity,
including all remedies provided under the UCC.


 


Article
VIII.


 


The Administrative Agent


 


Section
8.01         Authorization and Action.


 


(a)          Each
Lender, on behalf of itself and any of its Affiliates that are Secured Parties and each Issuing Bank hereby irrevocably appoints
the entity named as Administrative Agent in the heading of this Agreement and its successors and assigns to serve as the administrative
agent and collateral agent under the Loan Documents and each Lender and each Issuing Bank authorizes the Administrative Agent to
take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Loan Documents as are delegated
to the Administrative Agent under such agreements and to exercise such powers as are reasonably incidental thereto. In addition,
to the extent required under the laws of any jurisdiction other than within the United States, each Lender and each Issuing Bank
hereby grants to the Administrative Agent any required powers of attorney to execute and enforce any Collateral Document governed
by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. Without limiting the foregoing, each
Lender and each Issuing Bank hereby authorizes the Administrative Agent to execute and deliver, and to perform its obligations
under, each of the Loan Documents to which the Administrative Agent is a party, to exercise all rights, powers and remedies that
the Administrative Agent may have under such Loan Documents.


 




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(b)          As
to any matters not expressly provided for herein and in the other Loan Documents (including enforcement or collection), the Administrative
Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Loan Documents), and, unless
and until revoked in writing, such instructions shall be binding upon each Lender and each Issuing Bank; provided, however, that
the Administrative Agent shall not be required to take any action that (i) the Administrative Agent in good faith believes exposes
it to liability unless the Administrative Agent receives an indemnification satisfactory to it from the Lenders and the Issuing
Banks with respect to such action or (ii) is contrary to this Agreement or any other Loan Document or applicable law, including
any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization
or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation
of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the
Administrative Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed
action and may refrain from acting until such clarification or direction has been provided. 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, any other Loan Party, any Subsidiary or any Affiliate of any of the foregoing that is
communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. Nothing in
this Agreement shall require the Administrative Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured
to it.


 


(c)          In
performing its functions and duties hereunder and under the other Loan Documents, the Administrative Agent is acting solely on
behalf of the Lenders and the Issuing Banks (except in limited circumstances expressly provided for herein relating to the maintenance
of the Register), and its duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing:


 


(i)          the
Administrative Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as
the agent, fiduciary or trustee of or for any Lender, Issuing Bank or Secured Party other than as expressly set forth herein and
in the other Loan Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood
and agreed that the use of the term “agent” (or any similar term) herein or in any other Loan Document with reference
to the Administrative Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under
agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect
only an administrative relationship between contracting parties); additionally, each Lender agrees that it will not assert any
claim against the Administrative Agent based on an alleged breach of fiduciary duty by the Administrative Agent in connection with
this Agreement and the transactions contemplated hereby; and


 


(ii)         nothing
in this Agreement or any Loan Document shall require the Administrative Agent to account to any Lender for any sum or the profit
element of any sum received by the Administrative Agent for its own account;


 




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(d)          The
Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Loan Document
by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent
may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties.
The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent
and any such sub-agent, and shall apply to their respective activities pursuant to this Agreement. The Administrative Agent shall
not be responsible for the negligence or misconduct of any sub-agent except to the extent that a court of competent jurisdiction
determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct
in the selection of such sub-agent.


 


(e)          None
of the Syndication Agent or any Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any
other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the
benefit of the indemnities provided for hereunder.


 


(f)          In
case of the pendency of any proceeding with respect to any Loan Party under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, the Administrative Agent (irrespective of whether the principal of any
Loan or any reimbursement obligation in respect of any LC Disbursement shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall
be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:


 


(i)          to
file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, LC Disbursements
and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order
to have the claims of the Lenders, the Issuing Banks and the Administrative Agent (including any claim under Sections 2.12, 2.13,
2.15, 2.17 and 9.03) allowed in such judicial proceeding; and


 


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


 


and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each Issuing
Bank and each other Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent
shall consent to the making of such payments directly to the Lenders, the Issuing Bank or the other Secured Parties, to pay to
the Administrative Agent any amount due to it, in its capacity as the Administrative Agent, under the Loan Documents (including
under Section 9.03). Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to
or accept or adopt on behalf of any Lender or any Issuing Bank any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or any Issuing Bank or to authorize the Administrative Agent to vote in respect
of the claim of any Lender or any Issuing Bank in any such proceeding.


 


The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders and the Issuing Banks, and, except solely to the extent of the Borrower’s
rights to consent pursuant to and subject to the conditions set forth in this Article, none of the Borrower or any Subsidiary,
or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured
Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees
of the Secured Obligations provided under the Loan Documents, to have agreed to the provisions of this Article.


 




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Section
8.02         Administrative Agent’s Reliance, Indemnification, Etc.


 


(a)          Neither
the Administrative Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be taken by it under
or in connection with this Agreement or the other Loan Documents (x) with the consent of or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good
faith to be necessary, under the circumstances as provided in the Loan Documents) or (y) in the absence of its own gross negligence
or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final
and nonappealable judgment) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations
or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate,
report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection
with, this Agreement or any other Loan Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Loan Document or for any failure of any Loan Party to perform its obligations hereunder or thereunder.


 


(b)          The
Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof (stating that
it is a “notice of default”) is given to the Administrative Agent by the Borrower, a Lender or an Issuing Bank, and
the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty
or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other
terms or conditions set forth in any Loan Document or the occurrence of any Default, (iv) the sufficiency, validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the satisfaction of any condition
set forth in Article IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered
to the Administrative Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable
or satisfactory to the Administrative Agent, or (vi) the creation, perfection or priority of Liens on the Collateral.


 


(c)          Without
limiting the foregoing, the Administrative Agent (i) may treat the payee of any promissory note as its holder until such promissory
note has been assigned in accordance with Section 9.04, (ii) may rely on the Register to the extent set forth in Section 9.04(b),
(iii) may consult with legal counsel (including counsel to the Borrower), independent public accountants and other experts selected
by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of
such counsel, accountants or experts, (iv) makes no warranty or representation to any Lender or Issuing Bank and shall not be responsible
to any Lender or Issuing Bank for any statements, warranties or representations made by or on behalf of any Loan Party in connection
with this Agreement or any other Loan Document, (v) in determining compliance with any condition hereunder to the making of a Loan,
or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank,
may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent shall have received
notice to the contrary from such Lender or Issuing Bank sufficiently in advance of the making of such Loan or the issuance of such
Letter of Credit and (vi) shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any
other Loan Document by acting upon, any notice, consent, certificate or other instrument or writing (which writing may be a fax,
any electronic message, Internet or intranet website posting or other distribution) or any statement made to it orally or by telephone
and believed by it to be genuine and signed or sent or otherwise authenticated by the proper party or parties (whether or not such
Person in fact meets the requirements set forth in the Loan Documents for being the maker thereof).


 




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Section
8.03         Posting of Communications.


 


(a)          The
Borrower agrees that the Administrative Agent may, but shall not be obligated to, make any Communications available to the Lenders
and the Issuing Banks by posting the Communications on IntraLinksTM, DebtDomain, SyndTrak, ClearPar or any other electronic
system chosen by the Administrative Agent to be its electronic transmission system (the “Approved Electronic Platform”).


 


(b)          Although
the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies
implemented or modified by the Administrative Agent from time to time (including, as of the Effective Date, a user ID/password
authorization system) and the Approved Electronic Platform is secured through a per-deal authorization method whereby each user
may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, the Issuing Banks and the Borrower
acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure, that the Administrative
Agent is not responsible for approving or vetting the representatives or contacts of any Lender that are added to the Approved
Electronic Platform, and that there are confidentiality and other risks associated with such distribution. Each of the Lenders,
the Issuing Bank and the Borrower hereby approves distribution of the Communications through the Approved Electronic Platform and
understands and assumes the risks of such distribution.


 


(c)          THE
APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC
PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO
WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN CONNECTION
WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT, ANY ARRANGER, ANY SYNDICATION
AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO
ANY LOAN PARTY, ANY LENDER, ANY ISSUING BANK OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN
PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED ELECTRONIC
PLATFORM.


 


“Communications”
means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any
Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent,
any Lender or any Issuing Bank by means of electronic communications pursuant to this Section, including through an Approved Electronic
Platform.


 


(d)          Each
Lender and Issuing Bank agrees that notice to it (as provided in the next sentence) specifying that Communications have been posted
to the Approved Electronic Platform shall constitute effective delivery of the Communications to such Lender for purposes of the
Loan Documents. Each Lender and Issuing Bank agrees (i) to notify the Administrative Agent in writing (which could be in the form
of electronic communication) from time to time of such Lender’s or Issuing Bank’s (as applicable) email address to
which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email
address.


 




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(e)          Each
of the Lenders, the Issuing Banks and the Borrower agrees that the Administrative Agent may, but (except as may be required by
applicable law) shall not be obligated to, store the Communications on the Approved Electronic Platform in accordance with the
Administrative Agent’s generally applicable document retention procedures and policies.


 


(f)          Nothing
herein shall prejudice the right of the Administrative Agent, any Lender or Issuing Bank to give any notice or other communication
pursuant to any Loan Document in any other manner specified in such Loan Document.


 


Section
8.04         The Administrative Agent Individually. With respect to
its Revolving Line Portion, Loans and Letters of Credit, the Person serving as the Administrative Agent shall have and may exercise
the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein
for any other Lender or Issuing Bank, as the case may be. The terms “Issuing Banks”, “Lenders”, “Required
Lenders” and any similar terms shall, unless the context clearly otherwise indicates, include the Administrative Agent in
its individual capacity as a Lender, Issuing Bank or as one of the Required Lenders, as applicable. The Person serving as the
Administrative Agent and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor
or in any other advisory capacity for and generally engage in any kind of banking, trust or other business with, any Loan Party,
any Subsidiary or any Affiliate of any of the foregoing as if such Person was not acting as the Administrative Agent and without
any duty to account therefor to the Lenders or the Issuing Banks.


 


Section
8.05         Successor Administrative Agent.


 


(a)          The
Administrative Agent may resign at any time by giving 30 days’ prior written notice thereof to the Lenders, the Issuing Bank
and the Borrower, whether or not a successor Administrative Agent has been appointed. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Administrative Agent. If no successor Administrative Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Administrative Agent’s
giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint
a successor Administrative Agent, which shall be a bank with an office in New York, New York or an Affiliate of any such bank.
In either case, such appointment shall be subject to the prior written approval of the Borrower (which approval may not be unreasonably
withheld and shall not be required while an Event of Default has occurred and is continuing). Upon the acceptance of any appointment
as Administrative Agent by a successor Administrative Agent, such successor Administrative Agent shall succeed to, and become vested
with, all the rights, powers, privileges and duties of the retiring Administrative Agent. Upon the acceptance of appointment as
Administrative Agent by a successor Administrative Agent, the retiring Administrative Agent shall be discharged from its duties
and obligations under this Agreement and the other Loan Documents. Prior to any retiring Administrative Agent’s resignation
hereunder as Administrative Agent, the retiring Administrative Agent shall take such action as may be reasonably necessary to assign
to the successor Administrative Agent its rights as Administrative Agent under the Loan Documents.


 




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(b)          Notwithstanding
paragraph (a) of this Section, in the event no successor Administrative Agent shall have been so appointed and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives notice of its intent to resign, the retiring Administrative
Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Bank and the Borrower, whereupon, on
the date of effectiveness of such resignation stated in such notice, (i) the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder and under the other Loan Documents; provided that, solely for purposes of maintaining
any security interest granted to the Administrative Agent under any Collateral Document for the benefit of the Secured Parties,
the retiring Administrative Agent shall continue to be vested with such security interest as collateral agent for the benefit of
the Secured Parties, and continue to be entitled to the rights set forth in such Collateral Document and Loan Document, and, in
the case of any Collateral in the possession of the Administrative Agent, shall continue to hold such Collateral, in each case
until such time as a successor Administrative Agent is appointed and accepts such appointment in accordance with this Section (it
being understood and agreed that the retiring Administrative Agent shall have no duty or obligation to take any further action
under any Collateral Document, including any action required to maintain the perfection of any such security interest), and (ii)
the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent; provided that (A) all payments required to be made hereunder or under any other Loan Document to the Administrative Agent
for the account of any Person other than the Administrative Agent shall be made directly to such Person and (B) all notices and
other communications required or contemplated to be given or made to the Administrative Agent shall directly be given or made to
each Lender and Issuing Bank. Following the effectiveness of the Administrative Agent’s resignation from its capacity as
such, the provisions of this Article, Section 2.17(d) and Section 9.03, as well as any exculpatory, reimbursement and indemnification
provisions set forth in any other Loan Document, shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while
the retiring Administrative Agent was acting as Administrative Agent and in respect of the matters referred to in the proviso under
clause (a) above.


 


Section
8.06         Acknowledgements of Lenders and Issuing Bank.


 


(a)          Each
Lender represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and
that it has, independently and without reliance upon the Administrative Agent, any Arranger or any other Lender, or any of the
Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender
also acknowledges that it will, independently and without reliance upon the Administrative Agent, any Arranger or any other Lender,
or any of the Related Parties of any of the foregoing, and based on such documents and information (which may contain material,
non-public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it
shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon
this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.


 


(b)          Each
Lender, by delivering its signature page to this Agreement on the Effective Date, or delivering its signature page to an Assignment
and Assumption or any other Loan Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged
receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved
by or satisfactory to, the Administrative Agent or the Lenders on the Effective Date or the effective date of any such Assignment
and Assumption or any other Loan Document pursuant to which it shall have become a Lender hereunder.


 




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(c)          Each
Lender hereby agrees that (i) it has requested a copy of each Report prepared by or on behalf of the Administrative Agent; (ii)
the Administrative Agent (A) makes no representation or warranty, express or implied, as to the completeness or accuracy of any
Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (B) shall
not be liable for any information contained in any Report; (iii) the Reports are not comprehensive audits or examinations, and
that any Person performing any field examination will inspect only specific information regarding the Loan Parties and will rely
significantly upon the Loan Parties’ books and records, as well as on representations of the Loan Parties’ personnel
and that the Administrative Agent undertakes no obligation to update, correct or supplement the Reports; (iv) it will keep all
Reports confidential and strictly for its internal use, not share the Report with any Loan Party or any other Person except as
otherwise permitted pursuant to this Agreement; and (v) without limiting the generality of any other indemnification provision
contained in this Agreement, (A) it will hold the Administrative Agent and any such other Person preparing a Report harmless from
any action the indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any Report in connection
with any extension of credit that the indemnifying Lender has made or may make to the Borrower, or the indemnifying Lender’s
participation in, or the indemnifying Lender’s purchase of, a Loan or Loans; and (B) it will pay and protect, and indemnify,
defend, and hold the Administrative Agent and any such other Person preparing a Report harmless from and against, the claims, actions,
proceedings, damages, costs, expenses, and other amounts (including reasonable attorneys’ fees) incurred by the Administrative
Agent or any such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report
through the indemnifying Lender.


 


Section
8.07         Collateral Matters.


 


(a)          Except
with respect to the exercise of setoff rights in accordance with Section 9.08 or with respect to a Secured Party’s right
to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of
the Collateral or to enforce any Guarantee of the Secured Obligations, it being understood and agreed that all powers, rights and
remedies under the Loan Documents may be exercised solely by the Administrative Agent on behalf of the Secured Parties in accordance
with the terms thereof. In its capacity, the Administrative Agent is a “representative” of the Secured Parties within
the meaning of the term “secured party” as defined in the UCC. In the event that any Collateral is hereafter pledged
by any Person as collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and hereby granted
a power of attorney, to execute and deliver on behalf of the Secured Parties any Loan Documents necessary or appropriate to grant
and perfect a Lien on such Collateral in favor of the Administrative Agent on behalf of the Secured Parties.


 


(b)          In
furtherance of the foregoing and not in limitation thereof, no arrangements in respect of Banking Services the obligations under
which constitute Secured Obligations and no Swap Agreement the obligations under which constitute Secured Obligations, will create
(or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or
release of any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral,
each Secured Party that is a party to any such arrangement in respect of Banking Services or Swap Agreement, as applicable, shall
be deemed to have appointed the Administrative Agent to serve as administrative agent and collateral agent under the Loan Documents
and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph.


 


(c)          The
Secured Parties irrevocably authorize the Administrative Agent, at its option and in its discretion, to subordinate any Lien on
any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property
that is permitted by Section 6.02(b). The Administrative Agent shall not be responsible for or have a duty to ascertain or inquire
into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority
or perfection of the Administrative Agent’s Lien thereon or any certificate prepared by any Loan Party in connection therewith,
nor shall the Administrative Agent be responsible or liable to the Lenders or any other Secured Party for any failure to monitor
or maintain any portion of the Collateral.


 




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Section
8.08         Credit Bidding. The
Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit
bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or
all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly
or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the
provisions of the Bankruptcy Code, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar laws in
any other jurisdictions to which a Loan Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral
in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial
action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the
Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by the Administrative Agent at the
direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims
receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims
in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent
interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle
or vehicles that are issued in connection with such purchase). In connection with any such bid, (i) the Administrative Agent
shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such
acquisition vehicle or vehicles, (ii) each of the Secured Parties’ ratable interests in the Obligations which were
credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the
purpose of closing such sale, (iii) the Administrative Agent shall be authorized to adopt documents providing for the
governance of the acquisition vehicle or vehicles (provided that any actions by the Administrative Agent with respect to such
acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed,
directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or
their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle
or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the
limitations on actions by the Required Lenders contained in Section 9.02 of this Agreement), (iv) the Administrative Agent on
behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on
account of the relevant Obligations which were credit bid, interests, whether as equity, partnership, limited partnership
interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition
vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent
that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result
of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the
amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be
reassigned to the Secured Parties pro rata with their original interest in such Obligations and the equity interests and/or
debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without
the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable
portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in
clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party
(and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition
vehicle) as the Administrative Agent may reasonably request in connection with the formation of any acquisition vehicle, the
formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit
bid.


 




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Section
8.09         Certain ERISA Matters.


 


(a)          Each
Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date
such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative
Agent, and the Arrangers and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of the Borrower
or any other Loan Party, that at least one of the following is and will be true:


 


(i)          such
Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in
connection with the Loans, the Letters of Credit or the Revolving Line Portions,


 


(ii)         the
transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by
independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company
general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts),
PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption
for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into,
participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Line Portions and this Agreement,


 


(iii)        (A)
such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI
of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into,
participate in, administer and perform the Loans, the Letters of Credit, the Revolving Line Portions and this Agreement, (C) the
entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Line Portions
and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best knowledge
of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance
into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Line Portions and
this Agreement, or


 


(iv)         such
other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion,
and such Lender.


 


(b)          In
addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has not
provided another representation, warranty and covenant as provided in sub-clause (iv) in the immediately preceding clause (a),
such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants,
from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit
of, the Administrative Agent, and the Arrangers, the Syndication Agent, or any of their respective Affiliates, and not, for the
avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that none of the Administrative Agent, or the
Arrangers, the Syndication Agent, or any of their respective Affiliates is a fiduciary with respect to the assets of such Lender
(including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan
Document or any documents related hereto or thereto).


 




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(c)          The
Administrative Agent, the Syndication Agent and each Arranger hereby inform the Lenders that each such Person is not undertaking
to provide impartial investment advice, or to give advice in a fiduciary capacity, in connection with the transactions contemplated
hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate
thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Revolving Line Portions,
this Agreement and any other Loan Documents, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Revolving
Line Portions for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Revolving
Line Portions by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby,
the Loan Documents or otherwise, including structuring fees, arrangement fees, facility fees, upfront fees, underwriting fees,
ticking fees, agency fees, administrative agent fees or collateral agent fees, utilization fees, minimum usage fees, letter of
credit fees, issuing bank fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s
acceptance fees, breakage or other early termination fees or fees similar to the foregoing.


 


Section
8.10         Flood Laws. JPMCB has adopted
internal policies and procedures that address requirements placed on federally regulated lenders under the National Flood Insurance
Reform Act of 1994 and related legislation (the “Flood Laws”). JPMCB, as administrative agent or collateral
agent on a syndicated facility, will post on the applicable electronic platform (or otherwise distribute to each Lender in the
syndicate) documents that it receives in connection with the Flood Laws. However, JPMCB reminds each Lender and Participant in
the facility that, pursuant to the Flood Laws, each federally regulated Lender (whether acting as a Lender or Participant in the
facility) is responsible for assuring its own compliance with the flood insurance requirements.


 


Article
IX.


 


Miscellaneous


 


Section
9.01         Notices.


 


(a)          Except
in the case of notices and other communications expressly permitted to be given by telephone or Electronic Systems (and subject
in each case to 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 any Loan Party, to the Borrower at Akorn, Inc., 1925 W. Field Court, Suite 300, Lake Forest, Illinois 60045, Attention of Duane
A. Portwood, Chief Financial Officer (Facsimile No. 847-353-4936; Telephone No. 847-279-6150), with a copy, in the case
of a notice of an actual or potential Default, Event of Default, non-compliance with this Agreement or any other similar matter,
to:


 


Cravath, Swaine & Moore LLP


Worldwide Plaza


825 Eighth Avenue


New York, New York 10019


Attention: Stephen Kessing


Telecopy No. (212) 474-3700


Telephone No. (212) 474-1152


E-mail: skessing@cravath.com


 


(ii)         if
to the Administrative Agent (other than for purposes of a notification of the DQ List) or the Issuing Bank, to:


 


JPMorgan Chase Bank, N.A.


10 S. Dearborn Street, 22nd Floor


Attention: Evelyn Berthold


Facsimile No. (312) 732-1262


 




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(iii)        if
to the Administrative Agent for purposes of a notification of the DQ List, to JPMDQ_Contact@jpmorgan.com; and


 


(iv)         if
to any other Lender, to it at its address or facsimile number set forth in its Administrative Questionnaire.


 


All such notices and
other communications (i) sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed
to have been given when received, (ii) sent by facsimile shall be deemed to have been given when sent, provided that
if not given during 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 of the recipient, or (iii) delivered through Electronic Systems or Approved
Electronic Platforms, as applicable, to the extent provided in paragraph (b) below shall be effective as provided in such
paragraph.


 


(b)          Notices
and other communications to the Lenders hereunder may be delivered or furnished by using Electronic Systems or Approved Electronic
Platforms, as applicable, or pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II or to compliance and no Default certificates delivered pursuant to Section 5.01(c)
unless otherwise agreed by the Administrative Agent and the applicable Lender. Each of the Administrative Agent and the Borrower
(on behalf of the Loan Parties) may, in its discretion, agree to accept notices and other communications to it hereunder by Electronic
Systems or Approved Electronic Platforms, as applicable, pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise proscribes, all such
notices and other communications (i) 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 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) posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient,
at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is
available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if
such notice, e-mail or other communication is not sent during the normal business hours of the recipient, such notice or communication
shall be deemed to have been sent at the opening of business on the next Business Day of the recipient.


 


(c)          Any
party hereto may change its address, facsimile number or e-mail address for notices and other communications hereunder by notice
to the other parties hereto.


 




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Section
9.02         Waivers; Amendments.


 


(a)          No
failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under
any other Loan Document (or under the Existing Credit Agreement) shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, preclude any
other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent,
the Issuing Banks and the Lenders hereunder and under any other Loan Document are cumulative and are not exclusive of any rights
or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any Loan
Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting
the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.


 


(b)          Except
as provided in Section 2.14(c), neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders; provided that no
such agreement shall (i) increase the Revolving Line Portion of any Lender without the written consent of such Lender (including
any such Lender that is a Defaulting Lender), (ii) reduce or forgive the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of
each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby (provided that any amendment or modification
of the financial covenants in this Agreement (or any defined term used therein) shall not constitute a reduction in the rate of
interest or fees for purposes of this clause (ii)), (iii) postpone any scheduled date of payment of the principal amount
of any Loan or LC Disbursement, or any date for the payment of any interest, fees or other Obligations payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Revolving Line Portion, without
the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (iv) change
Section 2.18(b) or (d) in a manner that would alter the ratable reduction of Revolving Line Portions or
the manner in which payments are shared, without the written consent of each Lender (other than any Defaulting Lender), (v) increase
the advance rates set forth in the definition of Borrowing Base or add new categories of eligible assets, without the written consent
of each Lender (other than any Defaulting Lender), (vi) change any of the provisions of this Section or the definition of
“Required Lenders” or any other provision of any Loan Document specifying the number or percentage of Lenders required
to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, without the written
consent of each Lender (including each Defaulting Lender), (vii) permit any Loan Party to assign its rights or obligations
under any Loan Document without the consent of each Lender (other than any Defaulting Lender), (viii) release all or substantially
all of the value of the Loan Guarantors (taken as a whole) (except as otherwise permitted herein or in the other Loan Documents),
without the written consent of each Lender (other than any Defaulting Lender), or (ix) except as provided in clause (c)
of this Section or in any Collateral Document, release all or substantially all of the Collateral, without the written consent
of each Lender (other than any Defaulting Lender); provided further that no such agreement shall (1) amend, modify or otherwise
affect the rights or duties of the Administrative Agent, or any Issuing Bank hereunder without the prior written consent of the
Administrative Agent or such Issuing Bank, as the case may be (it being understood that any change to Section 2.20
shall require the consent of the Administrative Agent and such Issuing Bank) and (2) amend, modify,
waive, terminate or alter in any way the uncommitted and entirely discretionary nature of the Revolving Line Portion without the
written consent of each Lender. The Administrative Agent may also amend the Revolving Line Portion Schedule to reflect assignments
entered into pursuant to Section 9.04.


 




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(c)          The
Lenders and the Issuing Banks hereby irrevocably authorize the Administrative Agent, at its option and in its sole discretion,
to release any Liens granted to the Administrative Agent by the Loan Parties on any Collateral (i) upon the termination of
the Revolving Line Portions, payment and satisfaction in full in cash of all Secured Obligations (other than Unliquidated Obligations),
and the cash collateralization of all Unliquidated Obligations in a manner reasonably satisfactory to each affected Lender, (ii) constituting
property being sold or disposed of if the Loan Party disposing of such property certifies to the Administrative Agent that the
sale or disposition is made in compliance with the terms of this Agreement (and the Administrative Agent may rely conclusively
on any such certificate, without further inquiry), and to the extent that the property being sold or disposed of constitutes 100%
of the Equity Interest of a Subsidiary, the Administrative Agent is authorized to release any Loan Guaranty provided by such Subsidiary,
(iii) constituting property leased to a Loan Party under a lease which has expired or been terminated in a transaction permitted
under this Agreement, or (iv) as required to effect any sale or other disposition of such Collateral in connection with any
exercise of remedies of the Administrative Agent and the Lenders pursuant to Article VII. Except as provided in the
preceding sentence, the Administrative Agent will not release any Liens on Collateral without the prior written authorization of
the Required Lenders; provided that, the Administrative Agent may in its discretion, release its Liens on Collateral valued
in the aggregate not in excess of $5,000,000 during any calendar year without the prior written authorization of the Required Lenders
(it being agreed that the Administrative Agent may rely conclusively on one or more certificates of the Borrower as to the value
of any Collateral to be so released, without further inquiry). Any such release shall not in any manner discharge, affect, or impair
the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Loan Parties in respect of)
all interests retained by the Loan Parties, including the proceeds of any sale, all of which shall continue to constitute part
of the Collateral. Any execution and delivery by the Administrative Agent of documents in connection with any such release shall
be without recourse to or warranty by the Administrative Agent.


 


(d)          If,
in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each
Lender affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is
not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting
Lender”), then the Borrower may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided
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 Loans and other Obligations due to the
Non-Consenting Lender pursuant to an Assignment and Assumption and to become a Lender for all purposes under this Agreement and
to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of
clause (b) of Section 9.04, and (ii) the Borrower shall pay to such Non-Consenting Lender in same day funds
on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender
by the Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting
Lender under Sections 2.15 and 2.17, and (2) an amount, if any, equal to the payment which would have been
due to such Lender on the day of such replacement under Section 2.16 had the Loans of such Non-Consenting Lender been
prepaid on such date rather than sold to the replacement Lender. Each party hereto agrees that an assignment required pursuant
to this paragraph may be effected pursuant to an Assignment and Assumption executed by the Borrower, the Administrative Agent and
the assignee (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an
Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and (b) the Lender required
to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented
to an be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such
assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable
Lender, provided that any such documents shall be without recourse to or warranty by the parties thereto.


 




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(e)          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 without further
action or consent of any other party if the Administrative Agent does not receive from the Required Lenders an objection in writing
to such amendment, modification or supplement within five (5) Business Days following the Lenders’ receipt of notice thereof.


 


Section
9.03         Expenses; Indemnity; Damage Waiver.


 


(a)          The
Loan Parties shall, jointly and severally, pay promptly following written demand (including documentation reasonably supporting
such request) (i) all reasonable and documented out of pocket expenses incurred by the Administrative Agent and its Affiliates
(including JPMCB, as Arranger), including the reasonable and documented fees, charges and disbursements of a single counsel for
the Administrative Agent and JPMCB, as Arranger, plus one additional local counsel in each applicable jurisdiction, in connection
with the syndication and distribution (including, without limitation, via the internet or through a service such as Intralinks)
of the credit facilities provided for herein, the preparation and administration of the Loan Documents or any amendments, modifications
or waivers of the provisions of the Loan Documents (whether or not the transactions contemplated hereby or thereby shall be consummated),
(ii) all reasonable and documented out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable and documented
out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any Lender, including the fees, charges and disbursements
of a single counsel for the Administrative Agent, the Issuing Bank and the Lenders, taken as a whole, plus one additional local
counsel in each other jurisdiction (and, in light of actual or perceived conflicts of interest or the availability of different
claims or defenses, one additional counsel for each similarly affected group of Lenders (taken as a whole) and, if necessary, one
additional local counsel in each relevant jurisdiction for such affected group of Lenders), in connection with the enforcement,
collection or protection of its rights in connection with the Loan Documents, including its rights under this Section, or
in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. Expenses being reimbursed by the Loan
Parties under this Section include, without limiting the generality of the foregoing, fees, costs and expenses incurred
in connection with:


 


(i)          appraisals
and insurance reviews;


 


(ii)         subject
to the limitations set forth in Section 5.11, field examinations and the preparation of Reports based on the fees charged by a
third party retained by the Administrative Agent or the internally allocated fees for each Person employed by the Administrative
Agent with respect to each field examination (including any reasonable fees and expenses of other advisors and professionals engaged
by the Administrative Agent with the prior written consent of the Borrower (such consent not to be unreasonably withheld or delayed);


 


(iii)        background
checks regarding senior management and/or key investors, as deemed necessary or appropriate in the sole discretion of the Administrative
Agent;


 


(iv)         Taxes,
fees and other charges for (A) lien and title searches and title insurance and (B) recording the Mortgages, filing financing
statements and continuations, and other actions to perfect, protect, and continue the Administrative Agent’s Liens;


 




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(v)          sums
paid or incurred to take any action required of any Loan Party under the Loan Documents that such Loan Party fails to pay or take;
and


 


(vi)         forwarding
loan proceeds, collecting checks and other items of payment, and establishing and maintaining the accounts and lock boxes, and
costs and expenses of preserving and protecting the Collateral.


 


All of the foregoing
fees, costs and expenses may be charged to the Borrower as Revolving Loans or to another deposit account, all as described in Section 2.18(c).


 


(b)          The
Loan Parties shall, jointly and severally, indemnify the Administrative Agent, the Arrangers, the Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against,
and hold each Indemnitee harmless from, any and all actual losses, claims, damages, penalties, incremental taxes, liabilities and
related expenses, including the reasonable and documented fees, charges and disbursements of any single counsel for the Indemnitees
taken as a whole plus, if necessary, one additional local counsel in each relevant jurisdiction (and, in light of actual or perceived
conflicts of interest or the availability of different claims or defenses, one additional counsel for each similarly affected group
of Indemnitees (taken as a whole) and, if necessary, one additional local counsel in each relevant jurisdiction for such affected
group of Indemnitees), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties
hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated
hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom (including any refusal by the Issuing Bank
to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on
or from any property owned or operated by a Loan Party or a Subsidiary, or any Environmental Liability related in any way to a
Loan Party or a Subsidiary, (iv) the failure of a Loan Party to deliver to the Administrative Agent the required receipts
or other required documentary evidence with respect to a payment made by a Loan Party for Taxes pursuant to Section 2.17,
or (v) any actual or prospective claim, litigation, investigation, arbitration or proceeding relating to any of the foregoing,
whether or not such claim, litigation, investigation, arbitration or proceeding is brought by any Loan Party of their respective
equity holders, Affiliates, creditors or any other third Person and whether based on contract, tort or any other theory and regardless
of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, penalties, liabilities or related expenses (1) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from (A) the gross negligence, bad faith or willful misconduct
of such Indemnitee (or its Related Parties), or (B) a claim made by the Borrower alleging the material breach of the Loan Documents
by such Indemnitee (or its Related Parties) or (2) arise from any disputes solely among Indemnitees (other than any claims against
an Indemnitee in its capacity or in fulfilling its role as the Administrative Agent, Arranger or similar role under the Loan Documents
and any other claims arising out of any act or omission of the Borrower or any of its Affiliates). This Section 9.03(b)
shall not apply with respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax claim.


 


(c)          To
the extent that a Loan Party fails to pay any amount required to be paid by it to the Administrative Agent under paragraph (a)
or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent or the applicable Issuing Bank,
as the case may be, such Lender’s pro rata percentage of the Aggregate Revolving Line Portions (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) with respect to such unpaid amount (it being understood
that the payment by any Lender of any such amount shall not relieve such Loan Party of any default in the payment thereof); provided
that the unreimbursed expense or indemnified loss, claim, damage, penalty, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent or any Issuing Bank in its capacity as such.


 




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(d)          To
the extent permitted by applicable law, no party hereto shall assert, and each such party hereby waives, any claim against any
other party hereto (i) for any damages arising from the use by others of information or other materials obtained through telecommunications,
electronic or other information transmission systems (including the Internet) or (ii) on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the Transactions, any
Loan or Letter of Credit or the use of the proceeds thereof; provided that, nothing in this paragraph (d) shall relieve any
Loan Party of any obligation it may have to indemnify an Indemnitee against special, indirect, consequential or punitive damages
asserted against such Indemnitee by a third party.


 


(e)          All
amounts due under this Section shall be payable promptly after written demand therefor.


 


Section
9.04         Successors and Assigns.


 


(a)          The
provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i) the
Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each
Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under
or by reason of this Agreement.


 


(b)          (i)
Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one
or more Persons (other than an Ineligible Institution) all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Revolving Line Portion and the Loans at the time owing to it) with the prior written consent (such consent
not to be unreasonably withheld) of:


 


(1)         the
Borrower, provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto
by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof, and provided
further that no consent of the Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved
Fund or, if an Event of Default described in clause (a), (b), (h), (i) or (j) of Article
VII has occurred and is continuing, any other assignee; and


 


(2)         the
Administrative Agent.


 




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(ii)         Assignments
shall be subject to the following additional conditions:


 


(A)         except
in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund or an assignment of the entire remaining
amount of the assigning Lender’s Revolving Line Portion or Loans, the amount of the Revolving Line Portion or Loans of the
assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, provided that no such consent of the Borrower shall be required if an Event of Default has occurred and
is continuing;


 


(B)         each
partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement;


 


(C)         the
parties to each assignment shall execute and deliver to the Administrative Agent (x) an Assignment and Assumption or (y) to the
extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform
as to which the Administrative Agent and the parties to the Assignment and Assumption are participants, together with a processing
and recordation fee of $3,500; and


 


(D)         the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee
designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information
about the Borrower, the other Loan Parties and their Related Parties or their respective securities) will be made available and
who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal
and state securities laws.


 


For the purposes of
this Section 9.04(b), the terms “Approved Fund” and “Ineligible Institution”
have the following meanings:


 


“Approved
Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank
loans and similar extensions of credit in the ordinary course of its business and 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.


 


“Ineligible
Institution” means a (a) natural person, (b) Defaulting Lender or its Parent, (c) Disqualified Institution,
or (d) holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person
or relative(s) thereof; provided that, with respect to clause (d), such holding company, investment vehicle or trust
shall not constitute an Ineligible Institution if it (x) has not been established for the primary purpose of acquiring any
Loans or Revolving Line Portions, (y) is managed by a professional advisor, who is not such natural person or a relative thereof,
having significant experience in the business of making or purchasing commercial loans, and (z) has assets greater than $25,000,000
and a significant part of its activities consist of making or purchasing commercial loans and similar extensions of credit in the
ordinary course of its business, or (e) a Loan Party or a Subsidiary or other Affiliate of a Loan Party.


 




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(iii)        Subject
to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits
of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 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 paragraph (c) of this Section.


 


(iv)         The
Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices 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 Revolving Line Portion of, and principal amount of the Loans and LC Disbursements 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, the Issuing Bank and the Lenders shall treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.


 


(v)          Upon
its receipt of (x) a duly completed Assignment and Assumption executed by an assigning Lender and an assignee or (y) to the extent
applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an Approved Electronic Platform as
to which the Administrative Agent and the parties to the Assignment and Assumption are participants, the assignee’s completed
Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred
to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b)
of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein
in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required
to be made by it pursuant to Section 2.06(d) or (e), 2.07(b), 2.18(d) or 9.03(c), the Administrative
Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless
and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.


 


(c)          Any
Lender may, without the consent of the Borrower, the Administrative Agent or the Issuing Banks, sell participations to one or more
banks or other entities (a “ Participant”) other than an Ineligible Institution in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a portion of its Revolving Line Portion and the Loans
owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged; (B) such
Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (C) the Borrower,
the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described
in clauses (ii), (iii), (viii) or (ix) of the first proviso to Section 9.02(b) that affects such Participant.
The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.15, 2.16 and 2.17 (subject
to the requirements and limitations therein, including the requirements under Section 2.17(f) and (g) (it being
understood that the documentation required under Section 2.17(f) shall be delivered to the participating Lender and
the information and documentation required under Section 2.17(g) will be delivered to the Borrower and the Administrative
Agent)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section; provided that such Participant (A) agrees to be subject to the provisions of Sections 2.18
and 2.19 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive
any greater payment under Section 2.15 or 2.17, with respect to any participation, than its participating Lender would
have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law
that occurs after the Participant acquired the applicable participation.


 




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Each Lender that sells
a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to
effectuate the provisions of Section 2.19(b) with respect to any Participant. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.18(c) as though it were a Lender. Each Lender that sells a participation shall, acting
solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of
each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations
under this Agreement or any other Loan Document (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 Revolving Line Portions, Loans, Letters of Credit or its other obligations
under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Revolving
Line Portion, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United
States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender
shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes
of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity
as Administrative Agent) shall have no responsibility for maintaining a Participant Register.


 


(d)          Any
Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.


 


(e)          Disqualified
Institutions.


 


(i)          No
assignment or participation shall be made to any Person that was a Disqualified Institution as of the date (the “Trade
Date”) on which the assigning Lender entered into a binding agreement to sell and assign or grant a participation in
all or a portion of its rights and obligations under this Agreement to such Person (unless the Borrower has consented to such assignment
or participation in writing in its sole and absolute discretion, in which case such Person will not be considered a Disqualified
Institution for the purpose of such assignment or participation). For the avoidance of doubt, with respect to any assignee or Participant
that becomes a Disqualified Institution after the applicable Trade Date (including as a result of the delivery of a written supplement
to the list of “Disqualified Institutions” referred to in, the definition of “Disqualified Institution”),
(x) such assignee or Participant shall not retroactively be disqualified from becoming a Lender or Participant and (y) the execution
by the Borrower of an Assignment and Assumption with respect to such assignee will not by itself result in such assignee no longer
being considered a Disqualified Institution. Any assignment or participation in violation of this clause (e)(i) shall not
be void, but the other provisions of this clause (e) shall apply.


 




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(ii)         If
any assignment or participation is made to any Disqualified Institution without the Borrower’s prior written consent in violation
of clause (i) above, or if any Person becomes a Disqualified Institution after the applicable Trade Date, the Borrower may, at
its sole expense and effort, upon notice to the applicable Disqualified Institution and the Administrative Agent, require such
Disqualified Institution to assign, without recourse (in accordance with and subject to the restrictions contained in this Section
9.04), all of its interest, rights and obligations under this Agreement to one or more Persons (other than an Ineligible Institution)
at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Institution paid to acquire such interests,
rights and obligations in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable
to it hereunder.


 


(iii)        Notwithstanding
anything to the contrary contained in this Agreement, Disqualified Institutions to whom an assignment or participation is made
in violation of clause (i) above (A) will not have the right to (x) receive information, reports or other materials provided to
Lenders by the Borrower, the Administrative Agent or any other Lender, (y) attend or participate in meetings attended by the Lenders
and the Administrative Agent, or (z) access any electronic site established for the Lenders or confidential communications from
counsel to or financial advisors of the Administrative Agent or the Lenders and (B) (x) for purposes of any consent to any amendment,
waiver or modification of, or any action under, and for the purpose of any direction to the Administrative Agent or any Lender
to undertake any action (or refrain from taking any action) under this Agreement or any other Loan Document, each Disqualified
Institution will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Institutions consented
to such matter and (y) for purposes of voting on any plan of reorganization, each Disqualified Institution party hereto hereby
agrees (1) not to vote on such plan of reorganization, (2) if such Disqualified Institution does vote on such plan of reorganization
notwithstanding the restriction in the foregoing clause (1), such vote will be deemed not to be in good faith and shall be “designated”
pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other applicable laws), and such vote shall
not be counted in determining whether the applicable class has accepted or rejected such plan of reorganization in accordance with
Section 1126(c) of the Bankruptcy Code (or any similar provision in any other applicable laws) and (3) not to contest any request
by any party for a determination by the Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating the
foregoing clause (2).


 


(iv)         The
Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Administrative Agent, to (A) post the
list of Disqualified Institutions provided by the Borrower and any updates thereto from time to time (collectively, the “DQ
List”) on an Approved Electronic Platform, including that portion of such Platform that is designated for “public
side” Lenders and/or (B) provide the DQ List to each Lender or potential Lender requesting the same.


 


(v)          The
Administrative Agent and the Lenders shall not be responsible or have any liability for, or have any duty to ascertain, inquire
into, monitor or enforce, compliance with the provisions hereof relating to Disqualified Institutions. Without limiting the generality
of the foregoing, neither the Administrative Agent nor any Lender shall ‎(x) be obligated to ascertain, monitor or inquire
as to whether any other Lender or Participant or prospective Lender or Participant is a Disqualified ‎Institution or (y) have
any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information,
by any other Person to any ‎Disqualified Institution.


 




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Section
9.05         Survival. All
covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates
or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan
Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Revolving Line Portions have not expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII
shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit and the Revolving Line Portions or the
termination of this Agreement or any other Loan Document or any provision hereof or thereof.


 


Section
9.06         Counterparts; Integration; Effectiveness; Electronic Execution.


 


(a)          This
Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute
an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents,
and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when
it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns.


 


(b)          Delivery
of an executed counterpart of a signature page of this Agreement by telecopy, emailed pdf. or any other electronic means that reproduces
an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement.
The words “execution,” “signed,” “signature,” “delivery,” and words of like import
in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby or thereby
shall be deemed to include Electronic Signatures, deliveries 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, physical delivery thereof or the use
of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the
Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or
any other similar state laws based on the Uniform Electronic Transactions Act.


 


Section
9.07         Severability. Any provision
of any Loan Document held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of
the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate
such provision in any other jurisdiction.


 




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Section
9.08         Right of Setoff. If an Event
of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing by such Lender or Affiliate to or for the credit
or the account of the Borrower or any Loan Guarantor against any of and all the Obligations held by such Lender, irrespective of
whether or not such Lender shall have made any demand under the Loan Documents and although such obligations may be unmatured.
The applicable Lender shall notify the Borrower and the Administrative Agent of such set-off or application, provided that
any failure to give or any delay in giving such notice shall not affect the validity of any such set-off or application under this
Section. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.


 


Section
9.09          Governing Law; Jurisdiction; Consent to Service of Process.


 


(a)          The
Loan Documents (other than those containing a contrary express choice of law provision) shall be governed by and construed in accordance
with the internal laws (and not the law of conflicts) of the State of New York, but giving effect to federal laws applicable to
national banks.


 


(b)          Each
of the Lenders and the Administrative Agent hereby irrevocably and unconditionally agrees that, notwithstanding the governing law
provisions of any applicable Loan Document, any claims brought against the Administrative Agent by any Lender relating to this
Agreement, any other Loan Document or the consummation or administration of the transactions contemplated hereby or thereby shall
be construed in accordance with and governed by the law of the State of New York.


 


(c)          Each
of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction
of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan (or if such
court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the Borough of Manhattan),
and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other
Loan Document or the transactions relating hereto or thereto, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may (and
any such claims, cross-claims or third party claims brought against the Administrative Agent or any of its Related Parties may
only) be heard and determined in such Federal (to the extent permitted by law) or New York State court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or in any other Loan Document shall affect
any right that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating
to this Agreement or any other Loan Document against any Loan Party or its properties in the courts of any jurisdiction.


 


(d)          Each
Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.


 




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(e)          Each
party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01.
Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.


 


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


 


Section
9.11         Headings. Article and Section
headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall
not affect the construction of, or be taken into consideration in interpreting, this Agreement.


 


Section
9.12         Confidentiality. Each of the
Administrative Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed
of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested
by any Governmental Authority (including any self-regulatory authority, such as the National Association of Insurance Commissioners),
(c) to the extent required by any Requirement of Law or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies under this Agreement or any other Loan Document or
any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement
(it being understood that the DQ List may be disclosed to any assignee or Participant, or prospective assignee or Participant,
in reliance on this clause (f)) or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Loan Parties and their obligations, (g) with the consent of the Borrower, (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis from a source other than the
Borrower or (i) on a confidential basis to (1) a rating agency in connection with rating the Borrower or its Subsidiaries or the
credit facility provided for herein or (2) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring
of identification numbers with respect to the credit facility provided for herein. For the purposes of this Section, “Information”
means all information received from the Borrower relating to the Borrower or its business, other than any such information that
is available to the Administrative Agent, the Issuing Bank or any Lender on a non-confidential basis prior to disclosure by the
Borrower and other than information pertaining to this Agreement provided by arrangers to data service providers, including league
table providers, that serve the lending industry; provided that, in the case of information received from the Borrower after
the Effective Date, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain
the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord
to its own confidential information.


 




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EACH LENDER ACKNOWLEDGES
THAT INFORMATION AS DEFINED IN SECTION 9.12 FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION
CONCERNING THE BORROWER, THE OTHER LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT
HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.


 


ALL INFORMATION,
INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE
OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE
BORROWER, THE LOAN PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE
BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE
INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.


 


Section
9.13         Several Obligations; Nonreliance; Violation of Law. The
respective obligations of the Lenders hereunder are several and not joint and the failure of any Lender to make any Loan or perform
any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder. Each Lender hereby represents
that it is not relying on or looking to any margin stock (as defined in Regulation U of the Board) for the repayment of the Borrowings
provided for herein. Anything contained in this Agreement to the contrary notwithstanding, neither the Issuing Bank nor any Lender
shall be obligated to extend credit to the Borrower in violation of any Requirement of Law.


 


Section
9.14         USA PATRIOT Act. Each Lender
that is subject to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”) hereby notifies each Loan Party that pursuant to the requirements of the 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 Act.


 


Section
9.15         Disclosure. Each Loan Party
and each Lender hereby acknowledges and agrees that the Administrative Agent and/or its Affiliates from time to time may hold investments
in, make other loans to or have other relationships with any of the Loan Parties and their respective Affiliates. 


 


Section
9.16         Appointment for Perfection. Each
Lender hereby appoints each other Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative
Agent and the other Secured Parties, in assets which, in accordance with Article 9 of the UCC or any other applicable
law can be perfected only by possession or control. Should any Lender (other than the Administrative Agent) obtain possession or
control of any such Collateral, such Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative
Agent’s request therefor shall deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral
in accordance with the Administrative Agent’s instructions.


 




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Section
9.17         Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”), shall
exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or
reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan
hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful,
the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation
of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
NYFRB Rate to the date of repayment, shall have been received by such Lender.


 


Section
9.18         No Fiduciary Duty, etc. The
Borrower acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that no Credit Party will have any obligations
except those obligations expressly set forth herein and in the other Loan Documents and each Credit Party is acting solely in the
capacity of an arm’s length contractual counterparty to the Borrower with respect to the Loan Documents and the transaction
contemplated therein and not as a financial advisor or a fiduciary to, or an agent of, the Borrower or any other person. The Borrower
agrees that it will not assert any claim against any Credit Party based on an alleged breach of fiduciary duty by such Credit Party
in connection with this Agreement and the transactions contemplated hereby. Additionally, the Borrower acknowledges and agrees
that no Credit Party is advising the Borrower as to any legal, tax, investment, accounting, regulatory or any other matters in
any jurisdiction. The Borrower shall consult with its own advisors concerning such matters and shall be responsible for making
its own independent investigation and appraisal of the transactions contemplated hereby, and the Credit Parties shall have no responsibility
or liability to the Borrower with respect thereto. The Borrower further acknowledges and agrees, and acknowledges its Subsidiaries’
understanding, that each Credit Party, together with its Affiliates, is a full service securities or banking firm engaged in securities
trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of
business, any Credit Party may provide investment banking and other financial services to, and/or acquire, hold or sell, for its
own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and
other obligations) of, the Borrower and other companies with which the Borrower may have commercial or other relationships. With
respect to any securities and/or financial instruments so held by any Credit Party or any of its customers, all rights in respect
of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its
sole discretion. In addition, the Borrower acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that
each Credit Party and its affiliates may be providing debt financing, equity capital or other services (including financial advisory
services) to other companies in respect of which the Borrower may have conflicting interests regarding the transactions described
herein and otherwise. No Credit Party will use confidential information obtained from the Borrower by virtue of the transactions
contemplated by the Loan Documents or its other relationships with the Borrower in connection with the performance by such Credit
Party of services for other companies, and no Credit Party will furnish any such information to other companies. The Borrower also
acknowledges that no Credit Party has any obligation to use in connection with the transactions contemplated by the Loan Documents,
or to furnish to the Borrower, confidential information obtained from other companies.


 




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Section
9.19         Authorization to Distribute Certain Materials to Public-Siders.


 


(a)          If
the Borrower does not file this Agreement with the SEC, then the Borrower hereby authorizes the Administrative Agent to distribute
the execution version of this Agreement and the Loan Documents to all Lenders, including their Public-Siders. The Borrower acknowledges
its understanding that Public-Siders and their firms may be trading in any of the Loan Parties’ respective securities while
in possession of the Loan Documents.


 


(b)          The
Borrower represents and warrants that none of the information in the Loan Documents constitutes or contains material non-public
information within the meaning of federal and state securities laws. To the extent that any of the executed Loan Documents constitutes
at any time material non-public information within the meaning of the federal and state securities laws after the Effective Date,
the Borrower agrees that it will promptly make such information publicly available by press release or public filing with the SEC.


 


Section
9.20         Intercreditor Arrangements. Each
of the Lenders hereby agrees to be bound by the terms of the Intercreditor Agreement as if such Lender was a signatory thereto.
Each Lender (and each Person that becomes a Lender hereunder pursuant to Section 9.04) hereby (a) acknowledges that JPMCB is acting
under the Intercreditor Agreement in its capacity as Administrative Agent hereunder and as the Term Loan Administrative Agent and
JPMCB is or may be a Lender hereunder and/or a “Lender” under the Term Loan Agreement and (b) waives any conflict of
interest, now contemplated or arising hereafter, in connection therewith and agrees not to assert against the Administrative Agent
or the Term Loan Administrative Agent any claims, cause of action, damages or liabilities of whatever kind or nature relating thereto.
Without limiting the authority granted to the Administrative Agent in Section 8.01 hereof, each Lender (and each Person
that becomes a Lender hereunder pursuant to Section 9.04) hereby authorizes and directs the Administrative Agent to
enter into the Intercreditor Agreement on behalf of such Lender and agrees that the Administrative Agent and the Term Loan Administrative
Agent may take such actions on its behalf as is contemplated by the terms of the Intercreditor Agreement. Notwithstanding anything
herein to the contrary, the lien and security interest granted to the Administrative Agent pursuant to this Agreement or any other
Loan Document and the exercise of any right or remedy by the Administrative Agent hereunder or under any other Loan Document are
subject to the provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement,
this Agreement and any other Loan Document, the terms of the Intercreditor Agreement shall govern and control with respect to any
right or remedy. Without limiting the generality of the foregoing, and notwithstanding anything herein to the contrary, all rights
and remedies of the Administrative Agent (and the Lenders) with respect to the Term Loan Priority Collateral shall be subject to
the terms of the Intercreditor Agreement, and until the Term Loan Obligations Payment Date, any obligation of the Borrower and
any Loan Guarantor hereunder or under any other Loan Document with respect to the delivery or control of any Term Loan Priority
Collateral, the novation of any lien on any certificate of title, bill of lading or other document, the giving of any notice to
any bailee or other Person, the provision of voting rights or the obtaining of any consent of any Person, in each case in connection
with any Term Loan Priority Collateral, shall be deemed to be satisfied if the Borrower or such Loan Guarantor, as applicable,
complies with the requirements of the similar provision of the applicable Term Loan Document. Until the Term Loan Obligations Payment
Date, the delivery of any Term Loan Priority Collateral to the Term Loan Representative pursuant to the Term Loan Documents shall
satisfy any delivery requirement hereunder or under any other Loan Document.


 







    	109



     


    

 


Section
9.21         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 the parties hereto, each party hereto acknowledges that any liability of any EEA Financial Institution arising
under any Loan Document 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:


 



(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 part 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 entity, 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.


 


Section
9.22         Release. In consideration
of, among other things, Administrative Agent’s and the Lenders’ execution and delivery of this Agreement, each of the
Borrower and the other Loan Parties, on behalf of itself and its agents, representatives, officers, directors, advisors, employees,
subsidiaries, affiliates, successors, and assigns (collectively, the “Releasors”), hereby absolutely, unconditionally,
irrevocably, and forever agrees and covenants not to sue or prosecute (at law, in equity, in any regulatory proceeding, or otherwise)
against any Releasee (as hereinafter defined) and hereby forever waives, releases, and discharges each Releasee from any and all
claims (including, without limitation, crossclaims, counterclaims, rights of set-off, and recoupment), defenses, affirmative defenses,
actions, causes of action, suits, debts, accounts, interests, liens, promises, warranties, damages and consequential damages, demands,
agreements, bonds, bills, specialties, covenants, controversies, agreements, provisions, liabilities, demands, variances, trespasses,
judgments, executions, costs, expenses or claims whatsoever (collectively, the “Claims”) that such Releasor now has
or hereafter may have, of whatsoever nature and kind, whether known or unknown, whether now existing or hereafter arising, whether
arising at law or in equity, against the Administrative Agent, the Issuing Banks, the Arrangers and/or any or all of the Lenders,
in such capacity, and their respective affiliates, subsidiaries, shareholders and “controlling persons” (within the
meaning of the United States federal securities laws), and their respective successors and assigns and each and all of the officers,
directors, partners, employees, agents, attorneys, insurers, and other representatives of each of the foregoing (collectively,
the “Releasees”), in each case based in whole or in part on facts, whether or not now known, existing on or before
the date of this Agreement (or, in the case of clause (ii) below, existing after the date of this Agreement), in each case that
relate to, arise out of, or otherwise are in connection with: (i) any or all of the Loan Documents (or the Existing Credit Agreement)
or transactions contemplated thereby or any actions or omissions in connection therewith; (ii) a Lender’s decision not to
extend credit hereunder or (iii) any aspect of the dealings or relationships between or among the Borrower and the other Loan Parties,
on the one hand, and any or all of the Lenders, the Issuing Banks, the Arrangers or the Administrative Agent, on the other hand,
relating to any or all of the documents, transactions, actions, or omissions referenced in clause (i) hereof; provided that, in
no event shall the foregoing release provisions constitute a release of any Claims of the Releasors arising directly from the willful
misconduct or gross negligence of the Releasees (as determined by a court of competent jurisdiction in a final and nonappealable
judgment), it being understood and agreed that a Lender’s decision not to extend credit hereunder shall not in any event
constitute willful misconduct or gross negligence of such Lender or any other Releasee. In entering into this Agreement (including,
without limitation, the release provisions in this Section 9.22), the Borrower and each other Loan Party consulted with, and has
been represented by, legal counsel and expressly disclaims any reliance on any representations, acts, or omissions by any of the
Releasees and hereby agrees and acknowledges that the validity and effectiveness of the releases set forth above do not depend
in any way on any such representations, acts, and/or omissions or the accuracy, completeness, or validity hereof. If the Borrower,
any other Loan Party, any other Releasor or any of their successors, assigns, or other legal representatives violates the covenant
in this Section 9.22, the Borrower and the other Loan Parties, each for itself and its successors, assigns, other Releasors and
legal representatives, agrees to pay, in addition to such other damages as any Releasee may sustain as a result of such violation,
all reasonable attorneys’ fees and costs incurred by any Releasee as a result of such violation. The provisions of this Section
9.22 (the “Release Provisions”) shall survive the termination of this Agreement and the other Loan Documents and payment
in full of the Secured Obligations.


 




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Article
X.


 


Loan Guaranty


 


Section
10.01       Guaranty. Each Loan Guarantor
(other than those that have delivered a separate Guaranty) hereby agrees that it is jointly and severally liable for, and, as a
primary obligor and not merely as surety, absolutely and unconditionally guarantees to the Secured Parties, the prompt payment
when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations and
all costs and expenses, including, without limitation, all court costs and attorneys’ and paralegals’ fees (including
allocated costs of in-house counsel and paralegals) and expenses paid or incurred by the Administrative Agent, the Issuing Bank
and the Lenders in endeavoring to collect all or any part of the Secured Obligations from, or in prosecuting any action against,
the Borrower, any Loan Guarantor or any other guarantor of all or any part of the Secured Obligations (such costs and expenses,
together with the Secured Obligations, collectively the “Guaranteed Obligations”; provided, however,
that the definition of “Guaranteed Obligations” shall not create any guarantee by any Loan Guarantor of (or grant of
security interest by any Loan Guarantor to support, as applicable) any Excluded Swap Obligations of such Loan Guarantor for purposes
of determining any obligations of any Loan Guarantor). Each Loan Guarantor further agrees that the Guaranteed Obligations may be
extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee
notwithstanding any such extension or renewal. All terms of this Loan Guaranty apply to and may be enforced by or on behalf of
any domestic or foreign branch or Affiliate of any Lender that extended any portion of the Guaranteed Obligations.


 


Section
10.02       Guaranty of Payment. This
Loan Guaranty is a guaranty of payment and not of collection. Each Loan Guarantor waives any right to require the Administrative
Agent, the Issuing Bank or any Lender to sue the Borrower, any Loan Guarantor, any other guarantor of, or any other Person obligated
for, all or any part of the Guaranteed Obligations (each, an “Obligated Party”), or otherwise to enforce its
payment against any collateral securing all or any part of the Guaranteed Obligations.


 


Section
10.03        No Discharge or Diminishment of Loan Guaranty.


 


(a)          Except
as otherwise provided for herein, the obligations of each Loan Guarantor hereunder are unconditional and absolute and not subject
to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of
the Guaranteed Obligations), including: (i) any claim of waiver, release, extension, renewal, settlement, surrender, alteration
or compromise of any of the Guaranteed Obligations, by operation of law or otherwise; (ii) any change in the corporate existence,
structure or ownership of the Borrower or any other Obligated Party liable for any of the Guaranteed Obligations; (iii) any
insolvency, bankruptcy, reorganization or other similar proceeding affecting any Obligated Party or their assets or any resulting
release or discharge of any obligation of any Obligated Party; or (iv) the existence of any claim, setoff or other rights
which any Loan Guarantor may have at any time against any Obligated Party, the Administrative Agent, the Issuing Bank, any Lender
or any other Person, whether in connection herewith or in any unrelated transactions.


 




    	111



     


    

 


(b)          The
obligations of each Loan Guarantor hereunder are not subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of any of the Guaranteed Obligations or otherwise, or any
provision of applicable law or regulation purporting to prohibit payment by any Obligated Party, of the Guaranteed Obligations
or any part thereof.


 


(c)          Further,
the obligations of any Loan Guarantor hereunder are not discharged or impaired or otherwise affected by: (i) the failure of
the Administrative Agent, the Issuing Bank or any Lender to assert any claim or demand or to enforce any remedy with respect to
all or any part of the Guaranteed Obligations; (ii) any waiver or modification of or supplement to any provision of any agreement
relating to the Guaranteed Obligations; (iii) any release, non-perfection or invalidity of any indirect or direct security
for the obligations of the Borrower for all or any part of the Guaranteed Obligations or any obligations of any other Obligated
Party liable for any of the Guaranteed Obligations; (iv) any action or failure to act by the Administrative Agent, the Issuing
Bank or any Lender with respect to any collateral securing any part of the Guaranteed Obligations; or (v) any default, failure
or delay, willful or otherwise, in the payment or performance of any of the Guaranteed Obligations, or any other circumstance,
act, omission or delay that might in any manner or to any extent vary the risk of such Loan Guarantor or that would otherwise operate
as a discharge of any Loan Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of the Guaranteed
Obligations).


 


Section
10.04        Defenses Waived. To the fullest
extent permitted by applicable law, each Loan Guarantor hereby waives any defense based on or arising out of any defense of the
Borrower or any Loan Guarantor or the unenforceability of all or any part of the Guaranteed Obligations from any cause, or the
cessation from any cause of the liability of the Borrower, any Loan Guarantor or any other Obligated Party, other than the indefeasible
payment in full in cash of the Guaranteed Obligations. Without limiting the generality of the foregoing, each Loan Guarantor irrevocably
waives acceptance hereof, presentment, demand, protest and, to the fullest extent permitted by law, any notice not provided for
herein, as well as any requirement that at any time any action be taken by any Person against any Obligated Party or any other
Person. Each Loan Guarantor confirms that it is not a surety under any state law and shall not raise any such law as a defense
to its obligations hereunder. The Administrative Agent may, at its election, foreclose on any Collateral held by it by one or more
judicial or nonjudicial sales, accept an assignment of any such Collateral in lieu of foreclosure or otherwise act or fail to act
with respect to any collateral securing all or a part of the Guaranteed Obligations, compromise or adjust any part of the Guaranteed
Obligations, make any other accommodation with any Obligated Party or exercise any other right or remedy available to it against
any Obligated Party, without affecting or impairing in any way the liability of such Loan Guarantor under this Loan Guaranty except
to the extent the Guaranteed Obligations have been fully and indefeasibly paid in cash. To the fullest extent permitted by applicable
law, each Loan Guarantor waives any defense arising out of any such election even though that election may operate, pursuant to
applicable law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Loan Guarantor
against any Obligated Party or any security.


 


Section
10.05         Rights of Subrogation. No
Loan Guarantor will assert any right, claim or cause of action, including, without limitation, a claim of subrogation, contribution
or indemnification, that it has against any Obligated Party or any collateral, until the Loan Parties and the Loan Guarantors have
fully performed all their obligations to the Administrative Agent, the Issuing Bank and the Lenders.


 




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Section
10.06         Reinstatement; Stay of Acceleration. If
at any time any payment of any portion of the Guaranteed Obligations (including a payment effected through exercise of a right
of setoff) is rescinded, or must otherwise be restored or returned upon the insolvency, bankruptcy or reorganization of the Borrower
or otherwise (including pursuant to any settlement entered into by a Secured Party in its discretion), each Loan Guarantor’s
obligations under this Loan Guaranty with respect to that payment shall be reinstated at such time as though the payment had not
been made and whether or not the Administrative Agent, the Issuing Bank and the Lenders are in possession of this Loan Guaranty.
If acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization
of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Guaranteed
Obligations shall nonetheless be payable by the Loan Guarantors forthwith on demand by the Administrative Agent.


 


Section
10.07         Information. Each Loan Guarantor
assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the
risks that each Loan Guarantor assumes and incurs under this Loan Guaranty, and agrees that neither the Administrative Agent, the
Issuing Bank nor any Lender shall have any duty to advise any Loan Guarantor of information known to it regarding those circumstances
or risks.


 


Section
10.08         Termination. Each of the
Lenders and the Issuing Bank may continue to make loans or extend credit to the Borrower based on this Loan Guaranty until five
(5) days after it receives written notice of termination from any Loan Guarantor. Notwithstanding receipt of any such notice,
each Loan Guarantor will continue to be liable to the Lenders for any Guaranteed Obligations created, assumed or committed to prior
to the fifth day after receipt of the notice, and all subsequent renewals, extensions, modifications and amendments with respect
to, or substitutions for, all or any part of such Guaranteed Obligations.


 


Section
10.09         Taxes. Each payment of the
Guaranteed Obligations will be made by each Loan Guarantor without withholding for any Taxes, unless such withholding is required
by law. If any Loan Guarantor determines, in its sole discretion exercised in good faith, that it is so required to withhold Taxes,
then such Loan Guarantor may so withhold and shall timely pay the full amount of withheld Taxes to the relevant Governmental Authority
in accordance with applicable law. If such Taxes are Indemnified Taxes, then the amount payable by such Loan Guarantor shall be
increased as necessary so that, net of such withholding (including such withholding applicable to additional amounts payable under
this Section), the Administrative Agent, Lender or Issuing Bank (as the case may be) receives the amount it would have received
had no such withholding been made.


 


Section
10.10         Maximum Liability. Notwithstanding
any other provision of this Loan Guaranty, the amount guaranteed by each Loan Guarantor hereunder shall be limited to the extent,
if any, required so that its obligations hereunder shall not be subject to avoidance under Section 548 of the Bankruptcy
Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act, Uniform Voidable Transactions
Act or similar statute or common law. In determining the limitations, if any, on the amount of any Loan Guarantor’s obligations
hereunder pursuant to the preceding sentence, it is the intention of the parties hereto that any rights of subrogation, indemnification
or contribution which such Loan Guarantor may have under this Loan Guaranty, any other agreement or applicable law shall be taken
into account.


 




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Section
10.11         Contribution.


 


(a)          To
the extent that any Loan Guarantor shall make a payment under this Loan Guaranty (a “Guarantor Payment”) which,
taking into account all other Guarantor Payments then previously or concurrently made by any other Loan Guarantor, exceeds the
amount which otherwise would have been paid by or attributable to such Loan Guarantor if each Loan Guarantor had paid the aggregate
Guaranteed Obligations satisfied by such Guarantor Payment in the same proportion as such Loan Guarantor’s “Allocable
Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts
of each of the Loan Guarantors as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible
payment in full in cash of the Guarantor Payment and the Guaranteed Obligations (other than Unliquidated Obligations that have
not yet arisen), and all Revolving Line Portions and Letters of Credit have terminated or expired or, in the case of all Letters
of Credit, are fully collateralized on terms reasonably acceptable to the Administrative Agent and the Issuing Bank, and this Agreement,
the Swap Agreement Obligations and the Banking Services Obligations have terminated, such Loan Guarantor shall be entitled to receive
contribution and indemnification payments from, and be reimbursed by, each other Loan Guarantor for the amount of such excess,
pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.


 


(b)          As
of any date of determination, the “Allocable Amount” of any Loan Guarantor shall be equal to the excess of the fair
saleable value of the property of such Loan Guarantor over the total liabilities of such Loan Guarantor (including the maximum
amount reasonably expected to become due in respect of contingent liabilities, calculated, without duplication, assuming each other
Loan Guarantor that is also liable for such contingent liability pays its ratable share thereof), giving effect to all payments
made by other Loan Guarantors as of such date in a manner to maximize the amount of such contributions.


 


(c)          This
Section 10.11 is intended only to define the relative rights of the Loan Guarantors, and nothing set forth in this
Section 10.11 is intended to or shall impair the obligations of the Loan Guarantors, jointly and severally, to pay
any amounts as and when the same shall become due and payable in accordance with the terms of this Loan Guaranty.


 


(d)          The
parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Loan Guarantor
or Loan Guarantors to which such contribution and indemnification is owing.


 


(e)          The
rights of the indemnifying Loan Guarantors against other Loan Guarantors under this Section 10.11 shall be exercisable
upon the full and indefeasible payment of the Guaranteed Obligations in cash (other than Unliquidated Obligations that have not
yet arisen) and the termination or expiry (or, in the case of all Letters of Credit, full cash collateralization), on terms reasonably
acceptable to the Administrative Agent and the Issuing Bank, of the Revolving Line Portions and all Letters of Credit issued hereunder
and the termination of this Agreement, the Swap Agreement Obligations and the Banking Services Obligations.


 


Section
10.12         Liability Cumulative. The
liability of each Loan Party as a Loan Guarantor under this Article X is in addition to and shall be cumulative with
all liabilities of each Loan Party to the Administrative Agent, the Issuing Bank and the Lenders under this Agreement and the other
Loan Documents to which such Loan Party is a party or in respect of any obligations or liabilities of the other Loan Parties, without
any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides
to the contrary.


 




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Section
10.13         Keepwell. Each Qualified
ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other
support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Loan Guaranty in
respect of a Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 10.13
for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.13
or otherwise under this Loan Guaranty voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and
not for any greater amount). Except as otherwise provided herein, the obligations of each Qualified ECP Guarantor under this Section 10.13
shall remain in full force and effect until the termination of all Swap Obligations. Each Qualified ECP Guarantor intends that
this Section 10.13 constitute, and this Section 10.13 shall be deemed to constitute, a “keepwell,
support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II)
of the Commodity Exchange Act.


 


(Signature Pages Follow)


 




    	115



     


    

 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed and delivered by their respective authorized officers as of the
day and year first above written.


 


	 	AKORN, INC.
	 	 	 
	 	By	/s/ Duane Portwood
	 	 	Name:  Duane Portwood
	 	 	Title:  Executive Vice President and CFO
	 	 
	 	OTHER LOAN PARTIES:
	 	 
	 	ADVANCED VISION RESEARCH, INC.
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary
	 	 
	 	AKORN (NEW JERSEY), INC.
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary
	 	 
	 	AKORN ANIMAL HEALTH, INC.
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary
	 	 
	 	AKORN OPHTHALMICS, INC.
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary
	 	 
	 	AKORN SALES, INC.
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary


 


Signature Page to Amended and Restated Credit
Agreement

Akorn, Inc.


 




     


     


    

 


	 	INSPIRE PHARMACEUTICALS, INC.
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary
	 	 
	 	OAK PHARMACEUTICALS, INC.
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary
	 	 
	 	HI-TECH PHARMACAL CO., INC.
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary
	 	 
	 	10 EDISON STREET LLC
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary of Hi-Tech Pharmacal Co., Inc., its member
	 	 
	 	13 EDISON STREET LLC
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary of Hi-Tech Pharmacal Co., Inc., its member
	 	 
	 	VPI HOLDINGS CORP.
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary
	 	 
	 	VPI HOLDINGS SUB, LLC
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary


 


Signature Page to Amended and Restated Credit
Agreement

Akorn, Inc.


 



     


     


    

 


	 	VERSAPHARM INCORPORATED
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary
	 	 
	 	COVENANT PHARMA INC.
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary
	 	 
	 	OLTA PHARMACEUTICALS CORP.
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary
	 	 
	 	CLOVER PHARMACEUTICALS CORP.
	 	 	 
	 	By	/s/ Joseph Bonaccorsi
	 	 	Name:  Joseph Bonaccorsi
	 	 	Title:  Secretary


 


Signature Page to Amended and Restated Credit
Agreement

Akorn, Inc.


 




     


     


    

 


	 	JPMORGAN CHASE BANK, N.A., individually and as Administrative Agent and Issuing Bank
	 	 	 
	 	By	/s/ Justin Martin
	 	 	Name:  Justin Martin
	 	 	Title:  Authorized Officer


 


Signature Page to Amended and Restated Credit
Agreement

Akorn, Inc.


 




     


     


    

 


	 	Bank of America, N.A., as a Lender
	 	 	 
	 	By	/s/ Brian Scawinksi
	 	 	Name:  Brian Scawinksi
	 	 	Title:  AVP, AB Portfolio Specialist


 


Signature Page to Amended and Restated Credit
Agreement

Akorn, Inc.


 




     


     


    

 


	 	Wells Fargo Bank, National Association, as a Lender
	 	 	 
	 	By	/s/ Anne Sasal
	 	 	Name:  Anne Sasal
	 	 	Title:  Vice President


 


Signature Page to Amended and Restated Credit
Agreement

Akorn, Inc.


 




     


     


    

 


REVOLVING LINE PORTION SCHEDULE


 


	Lender	 	Revolving Line Portion	 
	JPMorgan Chase Bank, N.A.	 	$	75,000,000	 
	Bank of America, N.A.	 	$	40,000,000	 
	Wells Fargo Bank, National Association	 	$	35,000,000	 
	 	 	 	 	 
	Total	 	$	150,000,000	 



 


Revolving Line Portion Schedule


 




     


     


    

 


EXHIBIT A


 


ASSIGNMENT AND ASSUMPTION


 


This Assignment and
Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered
into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the
“Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit
Agreement identified below (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as
if set forth herein in full.


 


For an agreed consideration,
the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from
the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below, (i) all of the Assignor’s rights and obligations in its
capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor
under the respective facilities identified below (including any letters of credit, guarantees and swingline loans included in such
facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and
other rights of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby
or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and,
except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.


 


	1.	Assignor:	______________________________ 
	2.	Assignee:	______________________________
	 	 	[and is an Affiliate/Approved Fund of [identify Lender]1]
	3.	Borrower(s):	Akorn, Inc.
	4.	Administrative Agent:	JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement
	5.	Credit Agreement:	The Amended and Restated Credit Agreement dated as of April 16, 2019 among Akorn, Inc., the other Loan Parties party thereto, the Lenders parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and the other agents parties thereto
	 	 	 
	6.	Assigned Interest:


 


 



1 Select as applicable.


 




    	 	Exhibit A-1	 



     


    

 


	Aggregate Amount of
 Revolving Line
 Portion/Loans for all
 Lenders	 	 	Amount of Revolving
 Line Portion/Loans
 Assigned	 	 	Percentage Assigned of
 Revolving Line
 Portion/Loans2	 
	$	 	 	 	$	 	 	 	 	 	%
	$	 	 	 	$	 	 	 	 	 	%
	$	 	 	 	$	 	 	 	 	 	%



 


Effective Date: _____________________,
20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]


 


The Assignee agrees to deliver to the Administrative
Agent a completed Administrative Questionnaire in which the Assignee designates one or more Credit Contacts to whom all syndicate-level
information (which may contain material non-public information about the Borrower, the other Loan Parties and their Related Parties
or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s
compliance procedures and applicable laws, including Federal and state securities laws.


 


The terms set forth in this Assignment
and Assumption are hereby agreed to:


 


	 	ASSIGNOR
	 	 
	 	[NAME OF ASSIGNOR]
	 	 	 
	 	By:	      
	 	 	Title:
	 	 
	 	ASSIGNEE
	 	 
	 	[NAME OF ASSIGNEE]
	 	 	 
	 	By:	 
	 	 	Title:


 





 






2 Set forth, to at least 9 decimals, as a percentage
of the Revolving Line Portion/Loans of all Lenders thereunder.


 




    	 	Exhibit A-2	 



     


    

 


	[Consented to and]3 Accepted:	 
	 	 
	JPMORGAN CHASE BANK, N.A., as	 
	Administrative Agent and Issuing Bank 	 
	 	 	 
	By	       	 
	 	Title:	 
	 	 
	[Consented to:]4	 
	 	 
	AKORN, INC.	 
	 	 	 
	By	 	 
	 	Title:	 


 





 






3 To be added only if the consent of the Administrative
Agent is required by the terms of the Credit Agreement.


4 To be added only if the consent of the Borrower
and/or other parties (e.g. Issuing Bank) is required by the terms of the Credit Agreement.


 




    	 	Exhibit A-3	 



     


    

 


ANNEX 1


 


STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION


 


1.           Representations
and Warranties.


 


1.1.        Assignor.
The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the
Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority,
and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated
hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or
in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document, (iv) any requirements
under applicable law for the Assignee to become a lender under the Credit Agreement or to charge interest at the rate set forth
therein from time to time, or (v) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.


 


1.2.        Assignee.
The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary,
to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender
under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement and under applicable
law that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement,
together with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable,
and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision
independently and without reliance on the Administrative Agent or any other Lender and their respective Related Parties, and (v) if
it is a Foreign Lender, attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant
to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently
and without reliance on the Administrative Agent, any Arranger, the Assignor or any other Lender or their respective Related Parties,
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 the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.


 


2.          Payments.
From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.


 


3.          General
Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument.


 




    	Exhibit A-1



     


    

 


Acceptance and adoption
of the terms of this Assignment and Assumption by the Assignee and the Assignor by Electronic Signature or delivery of an executed
counterpart of a signature page of this Assignment and Assumption by any Approved Electronic Platform shall be effective as delivery
of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and
construed in accordance with, the law of the State of New York.


 




    	Exhibit A-2



     


    

 


EXHIBIT B


 


[INTENTIONALLY OMITTED]


 




    	Exhibit B-1 



     


    

 


EXHIBIT C


 


BORROWING BASE CERTIFICATE


 


[Attached]


 




    	Exhibit C-1 



     


    

 


EXHIBIT D


 


COMPLIANCE CERTIFICATE


 


		To:	The Lenders parties to the

Credit Agreement Described Below



 


This Compliance Certificate
is furnished pursuant to that certain Amended and Restated Credit Agreement dated as of April 16, 2019 (as amended, modified, renewed
or extended from time to time, the “Agreement”) among Akorn, Inc. (the “Borrower”), the other Loan
Parties, the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent for the Lenders and as the Issuing Bank.
Unless otherwise defined herein, capitalized terms used in this Compliance Certificate have the meanings ascribed thereto in the
Agreement.


 


THE UNDERSIGNED HEREBY
CERTIFIES THAT:


 


1.          I
am the duly elected                       
of the Borrower;


 


2.          I
have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of
the transactions and conditions of the Borrower and its Subsidiaries during the accounting period covered by the attached financial
statements [for quarterly or monthly financial statements add: and such financial statements present fairly in all material
respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes];


 


3.          The
examinations described in paragraph 2 did not disclose, except as set forth below, and I have no knowledge of (i) the existence
of any condition or event which constitutes a Default during or at the end of the accounting period covered by the attached financial
statements or as of the date of this Certificate or (ii) any change in GAAP or in the application thereof that has occurred
since the date of the audited financial statements referred to in Section 3.04 of the Agreement;


 


4.          I
hereby certify that no Loan Party has changed (i) its name, (ii) its chief executive office, (iii) principal place
of business, (iv) the type of entity it is or (v) its state of incorporation or organization without having given the
Administrative Agent the notice required by Section 4.15 of the Security Agreement;


 


5.          Schedule I
attached hereto sets forth financial data and computations evidencing the Borrower’s compliance with Section 6.13
of the Agreement, all of which data and computations are true, complete and correct; and


 


6.          Schedule II
hereto is a list identifying all Material Subsidiaries.


 


Described below are
the exceptions, if any, to paragraph 3 by listing, in detail, the (i) nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking, or proposes to take with respect to each such condition
or event or (i) the change in GAAP or the application thereof and the effect of such change on the attached financial statements:


 


 



 

 


 

 


 


 




    	Exhibit D-1 



     


    

 


The foregoing certifications,
together with the computations set forth in Schedule I and Schedule II hereto and the financial statements
delivered with this Certificate in support hereof, are made and delivered this      day of                ,
   .


 


	 	 
	 	By:	 
	 	 	Name:	 
	 	 	Title:	 


 




    	Exhibit D-2 



     


    

 


SCHEDULE I


 


Compliance as of ___________, ____ with

Provisions of Section 6.13 of the Agreement


 




    	Schedule I-1 



     


    

 


SCHEDULE II


 


Material Subsidiaries


 




    	Schedule II-1 



     


    

 


EXHIBIT E


 


JOINDER AGREEMENT


 


THIS JOINDER AGREEMENT
(this “Agreement”), dated as of _________________,____, 20__, is entered into between _______________________________________,
a _____________ (the “New Subsidiary”) and JPMORGAN CHASE BANK, N.A., in its capacity as administrative agent
(the “Administrative Agent”) under that certain Amended and Restated Credit Agreement dated as of April 16,
2019 (as the same may be amended, modified, extended or restated from time to time, the “Credit Agreement”)
among Akorn, Inc. (the “Borrower”), the other Loan Parties party thereto, the Lenders party thereto and the
Administrative Agent for the Lenders. All capitalized terms used herein and not otherwise defined herein shall have the meanings
set forth in the Credit Agreement.


 


The New Subsidiary
and the Administrative Agent, for the benefit of the Lenders, hereby agree as follows:


 


1.          The
New Subsidiary hereby acknowledges, agrees and confirms that, by its execution of this Agreement, the New Subsidiary will be deemed
to be a Loan Party under the Credit Agreement and a “Loan Guarantor” for all purposes of the Credit Agreement and shall
have all of the obligations of a Loan Party and a Loan Guarantor thereunder as if it had executed the Credit Agreement. The New
Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained
in the Credit Agreement, including without limitation (a) all of the representations and warranties of the Loan Parties set
forth in Article III of the Credit Agreement, *[and]* (b) all of the covenants set forth in Articles V
and VI of the Credit Agreement *[and (c) all of the guaranty obligations set forth in Article X of the Credit
Agreement. Without limiting the generality of the foregoing terms of this paragraph 1, the New Subsidiary, subject to the limitations
set forth in Sections 10.10 and 10.13 of the Credit Agreement, hereby guarantees, jointly and severally with the other
Loan Guarantors, to the Administrative Agent and the Lenders, as provided in Article X of the Credit Agreement, the
prompt payment and performance of the Guaranteed Obligations in full when due (whether at stated maturity, as a mandatory prepayment,
by acceleration or otherwise) strictly in accordance with the terms thereof and agrees that if any of the Guaranteed Obligations
are not paid or performed in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise),
the New Subsidiary will, jointly and severally together with the other Loan Guarantors, promptly pay and perform the same, without
any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations,
the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration or otherwise)
in accordance with the terms of such extension or renewal.]* *[The New Subsidiary has delivered to the Administrative Agent an
executed Loan Guaranty.]*


 


2.          If
required, the New Subsidiary is, simultaneously with the execution of this Agreement, executing and delivering such Collateral
Documents (and such other documents and instruments) as requested by the Administrative Agent in accordance with the Credit Agreement.


 


3.          The
address of the New Subsidiary for purposes of Section 9.01 of the Credit Agreement is as follows:


 


_______________________________


_______________________________


_______________________________


 




    	Exhibit E-1 



     


    

 


4.          The
New Subsidiary hereby waives acceptance by the Administrative Agent and the Lenders of the guaranty by the New Subsidiary upon
the execution of this Agreement by the New Subsidiary.


 


5.          This
Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but
all of which shall constitute one and the same instrument.


 


6.          THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.


 


IN WITNESS WHEREOF,
the New Subsidiary has caused this Agreement to be duly executed by its authorized officer, and the Administrative Agent, for the
benefit of the Lenders, has caused the same to be accepted by its authorized officer, as of the day and year first above written.


 


	 	[NEW SUBSIDIARY]
	 	 	                      
	 	By: 	 
	 	Name: 	 
	 	Title:	 
	 	 
	 	Acknowledged and accepted:
	 	 
	 	JPMORGAN CHASE BANK, N.A., as Administrative Agent
	 	 	 
	 	By: 	 
	 	Name: 	 
	 	Title:	 


 




    	Exhibit E-2 



     


    

 


EXHIBIT F-1


 


[FORM OF]



U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)


 


Reference is hereby
made to the Amended and Restated Credit Agreement dated as of April 16, 2019 (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”) among Akorn, Inc. (the “Borrower”), the other Loan
Parties party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent for the
Lenders.


 


Pursuant to the provisions
of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial
owner of the Loan(s) (as well as any promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate,
(ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent
shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled
foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.


 


The undersigned has
furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or
IRS Form W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided
on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the
undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently
effective certificate prior to the first payment to be made to the undersigned, or in either of the two calendar years preceding
such payments.


 


Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.


 


	[NAME OF LENDER]	 
	 	          	 
	By:	 	 
	 	Name:	 
	 	Title:	 
	 	 
	Date:  _________ __20[  ]	 


 




    	Exhibit F-1 



     


    

 


EXHIBIT F-2


 


[FORM OF]


 


U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)


 


Reference is hereby
made to the Amended and Restated Credit Agreement dated as of April 16, 2019 (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”) among Akorn, Inc. (the “Borrower”), the other Loan
Parties party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent for the
Lenders.


 


Pursuant to the provisions
of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial
owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning
of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning
of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower
as described in Section 881(c)(3)(C) of the Code.


 


The undersigned has
furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E,
as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times
furnished such Lender with a properly completed and currently effective certificate prior to the first payment to be made to the
undersigned, or in either of the two calendar years preceding such payments.


 


Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.


 


	[NAME OF PARTICIPANT]	 
	 	 	 
	By:	 	 
	 	Name:	 
	 	Title:	 
	 	 
	Date:  _________ __, 20[  ]	 


 




    	Exhibit F-2 



     


    

 


EXHIBIT F-3


 


[FORM OF]


 


U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)


 


Reference is hereby
made to the Amended and Restated Credit Agreement dated as of April 16, 2019 (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”) among Akorn, Inc. (the “Borrower”), the other Loan
Parties party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent for the
Lenders.


 


Pursuant to the provisions
of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner
of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are
the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of
its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course
of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect
partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code
and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described
in Section 881(c)(3)(C) of the Code.


 


The undersigned has
furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members
that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, or (ii) an IRS Form
W-8IMY accompanied by a withholding statement together with an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of
such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate,
the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform
such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective
certificate prior to the first payment to be made to the undersigned, or in either of the two calendar years preceding such payments.


 


Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.


 


	[NAME OF PARTICIPANT]	 
	 	 	 
	By:	 	 
	 	Name:	 
	 	Title:	 
	 	 
	Date:  _________ __, 20[  ]	 


 




    	Exhibit F-3 



     


    

 


EXHIBIT F-4


 


[FORM OF]



U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)


 


Reference is hereby
made to the Amended and Restated Credit Agreement dated as of April 16, 2019 (as amended, supplemented or otherwise modified from
time to time, the “Credit Agreement”) among Akorn, Inc. (the “Borrower”), the other Loan
Parties party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., in its capacity as Administrative Agent for the
Lenders.


 


Pursuant to the provisions
of Section 2.17 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as
well as any promissory note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or
indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any promissory note(s) evidencing such Loan(s)),
(iii) with respect to the extension of credit pursuant to the Credit Agreement or any other Loan Document, neither the undersigned
nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect
partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none
of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section
881(c)(3)(C) of the Code.


 


The undersigned has
furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of
its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable,
or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, from each of such partner’s/member’s
beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that
(1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative
Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed
and currently effective certificate prior to the first payment to be made to the undersigned, or in either of the two calendar
years preceding such payments.


 


Unless otherwise defined
herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.


 


	[NAME OF LENDER]	 
	 	 	 
	By:	 	 
	 	Name:	 
	 	Title:	 
	 	 
	Date:  _________ __20[  ]	 


 




    	Exhibit F-4 



     


    

 


EXHIBIT G


 


AKORN, INC.


 


AMENDED AND RESTATED CREDIT FACILITY


 


April 16, 2019


 


LIST OF CLOSING DOCUMENTS1


 


A.           LOAN
DOCUMENTS


 


		1.	Amended and Restated Credit Agreement (the “Credit
Agreement”) by and among Akorn, Inc., a Louisiana corporation (the “Borrower”), the other Loan Parties
party thereto, the institutions from time to time parties thereto as Lenders (the “Lenders”) and JPMorgan Chase
Bank, N.A., in its capacity as Administrative Agent for itself and the other Lenders (the “Administrative Agent”),
evidencing a uncommitted revolving credit facility to the Borrower from the Lenders in an aggregate principal amount of $150,000,000.



 


SCHEDULES


 


	Revolving Line Portion Schedule
	Schedule 3.01	—	Disclosed Matters
	Schedule 3.05	—	Properties
	Schedule 3.13	—	Insurance
	Schedule 3.14	—	Capitalization and Subsidiaries
	Schedule 6.01	—	Existing Indebtedness
	Schedule 6.02	—	Existing Liens
	Schedule 6.04	—	Existing Investments
	Schedule 6.10	—	Existing Restrictions
	 	 	 


 


EXHIBITS


 


	Exhibit A	—	Form of Assignment and Assumption
	Exhibit B	—	[Intentionally Omitted]
	Exhibit C	—	Form of Borrowing Base Certificate
	Exhibit D	—	Form of Compliance Certificate
	Exhibit E	—	Joinder Agreement
	Exhibit F-1	—	Form of U.S. Tax Certificate (Foreign Lenders That Are Not Partnerships)
	Exhibit F-2	—	Form of U.S. Tax Certificate (Foreign Participants That Are Not Partnerships)
	Exhibit F-3	—	Form of U.S. Tax Certificate (Foreign Participants That Are Partnerships)
	Exhibit F-4	—	Form of U.S. Tax Certificate (Foreign Lenders That Are Partnerships)
	Exhibit G	—	List of Closing Documents


 


 






1 Each capitalized term used herein and not defined
herein shall have the meaning assigned to such term in the above-defined Credit Agreement. Items appearing in bold and italics
shall be prepared and/or provided by the Borrower and/or Borrower’s counsel.


 




    	Exhibit G-1 



     


    

 


		2.	Notes executed by the Borrower in favor of each of the
Lenders, if any, which has requested a note pursuant to Section 2.10(e) of the Credit Agreement.



 


B.           UCC
DOCUMENTS


 


		3.	UCC, tax lien and name variation search reports naming
each Loan Party from the appropriate offices in relevant jurisdictions.



 


C.           CORPORATE
DOCUMENTS


 


		4.	Certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying (i) that there have been no changes in the Certificate of Incorporation or other charter document
of such Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental
entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (ii) the
By-Laws or other applicable organizational document, as attached thereto, of such Loan Party as in effect on the date of such
certification, (iii) resolutions of the Board of Directors or other governing body of such Loan Party authorizing the execution,
delivery and performance of each Loan Document to which it is a party, and (iv) the names and true signatures of the incumbent
officers of each Loan Party authorized to sign the Loan Documents to which it is a party, and (in the case of the Borrower) authorized
to request a Borrowing or the issuance of a Letter of Credit under the Credit Agreement.



 


		5.	Good Standing Certificate (or analogous documentation
if applicable) for each Loan Party from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization,
to the extent generally available in such jurisdiction.



 


D.           OPINIONS


 


		6.	Opinion of Cravath, Swaine & Moore LLP, special
New York counsel for the Loan Parties.



 


		7.	Opinion of Jones Walker LLP, special Louisiana counsel
for the Loan Parties.



 


E.           CLOSING
CERTIFICATES AND MISCELLANEOUS


 


		8.	A Certificate signed by the Chief Executive Officer,
a Vice President or a Financial Officer of the Borrower certifying the following: (i) all of the representations and warranties
contained in Article III of the Credit Agreement are true and correct in all material respects (or, with respect to any representation
or warranty which by its terms is made as of a specified date, is true and correct in all material respects only as of such specified
date, or, with respect to any representation or warranty which is subject to any materiality qualifier, is true and correct in
all respects) and (ii) that no Default or Event of Default has occurred and is then continuing.



 




    	Exhibit G-2