Exhibit 10.5


 





 






 


Deal CUSIP Number: 24001QAH4


Facility CUSIP Number:
24001QAJ0


 


 


CREDIT AGREEMENT


 


Dated as of July 31, 2015


 


among


 


THE DAYTON POWER AND
LIGHT COMPANY,





as the Borrower


 


PNC BANK, NATIONAL
ASSOCIATION, a national banking association,

as Administrative Agent, Swing Line Lender and an L/C Issuer 


 


FIFTH THIRD BANK,


 as Syndication
Agent and an L/C Issuer


 


BANK OF AMERICA, N.A.,





as Documentation Agent
and an L/C Issuer


 


and


 


THE OTHER LENDERS PARTY
HERETO


 


 







 



 


 


PNC CAPITAL MARKETS
LLC,





FIFTH THIRD BANK,


 


and


 


MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED,


 as Joint Lead Arrangers
and Joint Book Runners


 


 





 



 






    	 



    	 



    

 


	 	TABLE
OF CONTENTS 



	 
	Section    	 	Page
	 	 	 
	ARTICLE
    I.	DEFINITIONS
    AND ACCOUNTING TERMS	1
	 	 	 
	1.01	Defined
    Terms	1
	1.02	Other
    Interpretive Provisions	25
	1.03	Accounting
    Terms	26
	1.04	Rounding	26
	1.05	Times
    of Day	26
	1.06	Letter
    of Credit Amounts	26
	 	 	 
	ARTICLE
    II.	the
    COMMITMENTS and Credit Extensions	27
	 	 	 
	2.01	Committed
    Loans	27
	2.02	Borrowings,
    Conversions and Continuations of Committed Loans	27
	2.03	Letters
    of Credit	28
	2.04	Swing
    Line Loans	37
	2.05	Prepayments	40
	2.06	Termination
    or Reduction of Commitments	41
	2.07	Repayment
    of Loans	41
	2.08	Interest	42
	2.09	Fees	42
	2.10	Computation
    of Interest and Fees	43
	2.11	Evidence
    of Debt	43
	2.12	Payments
    Generally; Administrative Agent’s Clawback	44
	2.13	Sharing
    of Payments by Lenders	45
	2.14	Increase
    in Commitments	46
	2.15	Cash
    Collateral	47
	2.16	Defaulting
    Lenders	49
	 	 	 
	ARTICLE
    III.	TAXES,
    YIELD PROTECTION AND ILLEGALITY	51
	 	 	 
	3.01	Taxes	51
	3.02	Illegality	55
	3.03	Inability
    to Determine Rates	56
	3.04	Increased
    Costs; Reserves on Eurodollar Rate Loans	57
	3.05	Compensation
    for Losses	59
	3.06	Mitigation
    Obligations; Replacement of Lenders	59
	3.07	Survival	60
	 	 	 
	ARTICLE
    IV.	CONDITIONS
    PRECEDENT TO Credit Extensions	60
	 	 	 
	4.01	Conditions
    of Initial Credit Extension	60
	4.02	Conditions
    to all Credit Extensions	61
	 	 	 
	ARTICLE
    V.	REPRESENTATIONS
    AND WARRANTIES	62
	 	 	 
	5.01	Existence,
    Qualification and Power	62
	5.02	Authorization;
    No Contravention	62
	5.03	Governmental
    Authorization; Other Consents	62
	5.04	Binding
    Effect	63



   






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	 	TABLE
OF CONTENTS 



	 
	Section    	 	Page
	 	 	 
	5.05	Financial
    Statements; No Material Adverse Effect	63
	5.06	Litigation	63
	5.07	No
    Default	64
	5.08	Ownership
    of Property	64
	5.09	Environmental
    Compliance	64
	5.10	Insurance	64
	5.11	Taxes	65
	5.12	ERISA
    Compliance	65
	5.13	Subsidiaries	66
	5.14	Margin
    Regulations; Investment Company Act; Federal Power Act	66
	5.15	Disclosure	66
	5.16	Compliance
    with Laws	67
	5.17	 Intellectual
    Property; Licenses, Etc	67
	5.18	Solvency	67
	5.19	Employment
    Matters	67
	5.20	OFAC	67
	5.21	Anti-Corruption
    Laws	67
	 	 	 
	ARTICLE
    VI.	AFFIRMATIVE
    COVENANTS	68
	 	 	 
	6.01	Financial
    Statements	68
	6.02	Certificates;
    Other Information	69
	6.03	Notices	70
	6.04	Payment
    of Taxes and Claims	70
	6.05	Preservation
    of Existence, Etc	70
	6.06	Maintenance
    of Properties	71
	6.07	Maintenance
    of Insurance	71
	6.08	Compliance
    with Laws	71
	6.09	Books
    and Records	71
	6.10	Inspection
    Rights	71
	6.11	Use
    of Proceeds	72
	6.12	Senior
    Debt	72
	6.13	Anti-Corruption
    Laws	72
	 	 	 
	ARTICLE
    VII.	NEGATIVE
    COVENANTS	72
	 	 	 
	7.01	Liens	72
	7.02	Investments	75
	7.03	Fundamental
    Changes	76
	7.04	Dispositions	76
	7.05	Change
    in Nature of Business	77
	7.06	Transactions
    with Affiliates	77
	7.07	Burdensome
    Agreements	78
	7.08	Swap
    Agreements	78
	7.09	Use
    of Proceeds	78
	7.10	Accounting
    Changes	78




 






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	 	TABLE
OF CONTENTS 



	 
	Section    	 	Page
	 	 	 
	7.11	Financial
    Covenants	78
	7.12	Tax
    Exempt Agreements	79
	 	 	 
	ARTICLE
    VIII.	EVENTS
    OF DEFAULT AND REMEDIES	79
	 	 	 
	8.01	Events
    of Default	79
	8.02	Remedies
    Upon Event of Default	81
	8.03	Application
    of Funds	82
	 	 	 
	ARTICLE
    IX.	ADMINISTRATIVE
    AGENT	83
	 	 	 
	9.01	Appointment
    and Authority	83
	9.02	Rights
    as a Lender	83
	9.03	Exculpatory
    Provisions	83
	9.04	Reliance
    by Administrative Agent	84
	9.05	Delegation
    of Duties	84
	9.06	Resignation
    of Administrative Agent	85
	9.07	Non-Reliance
    on Administrative Agent and Other Lenders	86
	9.08	No
    Other Duties, Etc	86
	9.09	Administrative
    Agent May File Proofs of Claim	86
	 	 	 
	ARTICLE
    X.	MISCELLANEOUS	87
	 	 	 
	10.01	Amendments,
    Etc	87
	10.02	Notices;
    Effectiveness; Electronic Communication	88
	10.03	No
    Waiver; Cumulative Remedies; Enforcement	90
	10.04	Expenses;
    Indemnity; Damage Waiver	91
	10.05	Payments
    Set Aside	93
	10.06	Successors
    and Assigns	93
	10.07	Treatment
    of Certain Information; Confidentiality	98
	10.08	Right
    of Setoff	99
	10.09	Interest
    Rate Limitation	100
	10.10	Counterparts;
    Integration; Effectiveness	100
	10.11	Survival
    of Representations and Warranties	100
	10.12	Severability	100
	10.13	Replacement
    of Lenders	101
	10.14	Governing
    Law; Jurisdiction; Etc	102
	10.15	Waiver
    of Jury Trial	102
	10.16	No
    Advisory or Fiduciary Responsibility	103
	10.17	Electronic
    Execution of Assignments and Certain Other Documents	103
	10.18	USA
    PATRIOT Act	104
	 	 	 
	SIGNATURES	 	S-1




 






    iii 


     


    

 





	SCHEDULES
	 	 
	1.01	Existing Letters of
    Credit
	2.01	Commitments and Applicable
    Percentages
	7.01	Existing Liens
	7.02	Existing Investments
	10.02	Administrative Agent’s
    Office; Certain Addresses for Notices
	 	 
	EXHIBITS  Form of
	 	 
	A-1	Committed Loan Notice
	A-2	Swing Line Loan Notice
	B	Note
	C	Compliance Certificate
	D-1	Assignment and Assumption
	D-2	Administrative Questionnaire
	E	U.S. Tax Compliance
    Certificates
	F	Report of Letter of
    Credit Information







 


 






    i 


     


    

 


 


CREDIT
AGREEMENT


 


This CREDIT AGREEMENT
(as may be hereafter amended, supplemented or otherwise modified from time to time, the "Agreement") is entered
into as of July 31, 2015, among THE DAYTON POWER AND LIGHT COMPANY, an Ohio corporation (the "Borrower"
or “DP&L”), each lender from time to time party hereto (collectively, the "Lenders" and
each individually, a "Lender"), PNC BANK, NATIONAL ASSOCIATION, a national banking association ("Administrative
Agent"), as Administrative Agent, Swing Line Lender and an L/C Issuer, and FIFTH THIRD BANK, as Syndication Agent
and an L/C Issuer and BANK OF AMERICA, N.A., as Documentation Agent and an L/C Issuer.


 


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


 


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


 


ARTICLE
I.    DEFINITIONS AND ACCOUNTING TERMS


 


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


 


"Acquisition"
means any acquisition (a) on a going concern basis (whether by purchase, merger or otherwise) of assets constituting a business
or a division or line of business of a Person that is not a Subsidiary of the Borrower or (b) of a majority of the outstanding
Equity Interests in any such Person (whether by merger, stock purchase or otherwise).


 


"Act"
has the meaning specified in Section 10.18.


 


"Administrative
Agent" means PNC Bank, National Association, in its capacity as administrative agent under any of the Loan Documents,
or any successor administrative agent.


 


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


 


"Administrative
Questionnaire" means an Administrative Questionnaire in substantially the form of Exhibit D-2 or any other form
approved by the Administrative Agent.


 


"AES"
means The AES Corporation, a Delaware corporation.


 


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


 


"Aggregate
Commitments" means the Commitments of all the Lenders.


 




    1 


     


    

 


"Agreement"
has the meaning specified in the introductory paragraph hereto.


 


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


 


"Applicable
Rate" means, from time to time, the following percentages per annum, based upon the Ratings as set forth below:


 


	Applicable Rate
	Pricing Level	Ratings

S&P/Moody’s/Fitch	
        Undrawn

        

        Fee

        
	
        Eurodollar
Rate + / 

        Letters of Credit

        
	Base Rate +
	1	BBB+/Baa1/BBB+ or greater	0.175%	1.250%	0.250%
	2	BBB/Baa2/BBB	0.225%	1.500%	0.500%
	3	BBB-/Baa3/BBB-	0.275%	1.750%	0.750%
	4	BB+/Ba1/BB+	0.350%	2.000%	1.000%
	5	BB/Ba2/BB	0.400%	2.250%	1.250%
	6	BB-/Ba3/BB- or lower	0.450%	2.500%	1.500%


 


If each of the respective
Ratings issued by the Rating Agencies differs by at least one level, then the Pricing Level for the intermediate of such Ratings
shall apply. If two of the Rating Agencies issue a Rating at the same level and one of the Rating Agencies issues a Rating at a
different level, then the Pricing Level for the Ratings at the same level shall apply. If only two of the Rating Agencies issue
a Rating and there is a split in Ratings of more than one level, then the intermediate Pricing Level that is the midpoint between
the two Ratings shall apply (or if there is no midpoint, then the highest intermediate Pricing Level shall apply (with the Rating
for Pricing Level 1 being the highest and the Rating for Pricing Level 6 being the lowest)). If only two of the Rating Agencies
issue a Rating and such Ratings differ by one level, then the Pricing Level for the higher of such Ratings shall apply. If the
Borrower has only one Rating, the Pricing Level for such Rating shall apply. If the Borrower does not have any Rating, Pricing
Level 6 shall apply.


 




    2 


     


    

 


Initially, the Applicable
Rate shall be determined based upon the Ratings specified in the certificate delivered pursuant to Section 4.01(a)(vi).
Thereafter, each change in the Applicable Rate resulting from a publicly announced change in any Rating shall be effective during
the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective
date of the next such change. Notwithstanding the foregoing, at any time that an Event of Default exists, Pricing Level 6 shall
apply.


 


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


 


"Arrangers"
means PNC Capital Markets LLC, in its capacity as left lead arranger and joint book runner, Fifth Third Bank and Merrill Lynch,
Pierce, Fenner and Smith Incorporated, each in its capacity as a joint lead arranger and joint book runner.


 


"Assignment
and Assumption" means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit
D-1 or any other form approved by the Administrative Agent.


 


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


 


"Audited Financial
Statements" means the audited condensed consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal
year ended December 31, 2014, and the related consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.


 


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


 


"Base Rate"
means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate on such date plus
1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by PNC Bank, National Association
as its "prime rate," and (c) the Eurodollar Rate for an Interest Period of one month plus 1% and if Base Rate shall be
less than zero, such rate shall be deemed to be zero for purposes of this Agreement. The "prime rate" is a rate set by
PNC Bank, National Association based upon various factors including PNC Bank, National Association’s costs and desired return,
general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate. Any change in such prime rate announced by PNC Bank, National


 




    3 


     


    

 


Association shall take
effect at the opening of business on the day specified in the public announcement of such change.


 


"Base Rate
Committed Loan" means a Committed Loan that is a Base Rate Loan.


 


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


 


"Borrower"
has the meaning specified in the introductory paragraph hereto.


 


"Borrower Materials"
has the meaning specified in Section 6.02.


 


"Borrowing"
means a Committed Borrowing or a Swing Line Borrowing, as the context may require.


 


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


 


"Capital Lease"
means, as applied to any Person, any lease of any property (whether real, personal or mixed) by such Person, as lessee, that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet of that Person.


 


"Capitalized
Lease Obligations" means all obligations under Capital Leases of the Borrower or any of its Subsidiaries in each case
taken at the amount thereof accounted for as liabilities and identified as "capital lease obligations" (or any similar
words) on a consolidated balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP.


 


"Cash Collateralize"
means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of the Administrative Agent, L/C Issuers
or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans,
or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account
balances or, if the L/C Issuers or Swing Line Lender benefitting from such collateral shall agree in its sole discretion, other
credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative
Agent and (b) the L/C Issuers or the Swing Line Lender (as applicable). "Cash Collateral" shall have a meaning correlative
to the foregoing and shall include the proceeds of such cash collateral and other credit support.


 


"Change in
Law" means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect
of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation
or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether
or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary,
(x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder
or issued in


 




    4 


     


    

 


connection therewith
and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee
on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each
case pursuant to Basel III, shall in each case be deemed to be a "Change in Law", regardless of the date enacted, adopted
or issued; and provided further that, as to any Lender seeking reimbursement or compensation hereunder with respect to either of
clause (x) or (y) immediately above, such Lender shall only be so reimbursed or compensated to the extent that such Lender is then
generally seeking reimbursement or compensation in respect of credit transactions entered into on or after the date hereof similar
to the transactions contemplated hereby from borrowers similarly situated to the Borrower to the extent such Act, or any such request,
rule, guideline or directive, as the case may be, is applicable thereto.


 


"Change of
Control" means:


 


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


 


(b)during
any period of 12 consecutive months, a majority of the members (excluding vacancies) of the board of directors or other equivalent
governing body of the Parent cease to be composed of individuals (i) who were members of that board or equivalent governing body
on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board
or equivalent governing body; or


 


(c)the
Parent shall cease to own (directly or indirectly) 100% of the outstanding shares of all classes of stock of the Borrower ordinarily
having the right to vote at an election of directors, or any contingency shall occur that causes any class of stock of the Borrower,
the shares of which are not owned by the Parent, to have the right to vote at an election of directors. 


 


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


 




    5 


     


    

 


"Code"
means the Internal Revenue Code of 1986, as amended.


 


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


 


“Commitment
Letter” means that certain letter agreement dated as of June 1, 2015 among the Borrower and the Arrangers evidencing
the commitment of PNC Bank, National Association, Fifth Third Bank and Bank of America, N.A.


 


"Committed
Borrowing" means a borrowing consisting of simultaneous Committed Loans of the same Type and, in the case of Eurodollar
Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.


 


"Committed
Loan" has the meaning specified in Section 2.01.


 


"Committed
Loan Notice" means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other,
or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially
in the form of Exhibit A-1.


 


"Compliance
Certificate" means a certificate substantially in the form of Exhibit C.


 


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


 


“Consolidated
EBITDA” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, an amount equal to Consolidated
Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i)
Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by
the Borrower and its Subsidiaries for such period, (iii) depreciation and amortization expense for such period, (iv) other non-recurring
expenses of the Borrower and its Subsidiaries reducing such Consolidated Net Income (x) which do not represent a cash item in such
period or (y) which are cash items in such period that were incurred as a result of (A) the early termination of Borrower’s
Capital Trust II Indebtedness or (B) termination of existing swap contracts (it being understood that cash charges described in
this clause (B) will not exceed $50,000,000 in the aggregate), (C) out-of pocket third party costs and expenses incurred directly
in connection with the implementation, negotiation, documentation and closing of the Separation Transactions or (D) normal and
customary out-of-pocket third party costs, expenses and fees incurred directly in connection with the refinancing of any existing
Indebtedness, and (v) all other non-cash items reducing Consolidated Net Income for such period, and minus (b) the following
to the extent included in calculating such Consolidated Net Income: (i) Federal, state,


 




    6 


     


    

 


local and foreign income
tax credits of the Borrower and its Subsidiaries for such period and (ii) all non-cash items increasing Consolidated Net Income
for such period.


 


“Consolidated
Interest Charges” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the sum of (a)
all interest, premium payments, debt discount, fees, charges and related expenses of the Borrower and its Subsidiaries in connection
with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case
to the extent treated as interest in accordance with GAAP, and (b) the portion of rent expense of the Borrower and its Subsidiaries
with respect to such period under capital leases that is treated as interest in accordance with GAAP.


 


"Consolidated
Net Income" means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the net income (or loss),
without deduction for minority interests, of the Borrower and its Subsidiaries for that period determined in conformity with GAAP.


 


"Consolidated
Net Worth" means, as of any date of determination, for the Borrower and its Subsidiaries on a consolidated basis, all
amounts that, in conformity with GAAP, would be included under the caption "total stockholders’ equity" (or any
like caption) on a consolidated balance sheet of the Borrower and its Subsidiaries as of such date; provided that in no
event shall Consolidated Net Worth include any amounts in respect of Redeemable Stock.


 


"Consolidated
Tangible Assets" means , as of any date of determination, for the Borrower and its Subsidiaries on a consolidated basis,
the consolidated total assets of the Borrower and its Subsidiaries calculated on a consolidated basis as of such date, but excluding
therefrom goodwill, patents, patent applications, permits, trademarks, trade names, copyrights, licenses, franchises, experimental
expense, organizational expense, unamortized debt discount and expense, the excess of cost of shares acquired over book value of
related assets and such other assets that are properly classified as "intangible assets" in accordance with GAAP.


 


"Consolidated
Total Capitalization" means, as of any date of determination, the sum of Consolidated Total Debt and Consolidated Net
Worth and, to the extent not otherwise included, preferred stock of the Borrower.


 


"Consolidated
Total Debt" means, as of any date of determination, for the Borrower and its Subsidiaries on a consolidated basis, the
sum (without duplication) of all Indebtedness of the Borrower and of each of its Subsidiaries (other than the Borrower’s
guarantee of any debt obligation of Ohio Valley Electric Corporation, an electric generating company in which the Borrower holds
a 4.9% equity interest).


 


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


 


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


 




    7 


     


    

 


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


 


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


 


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


 


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


 


"Defaulting
Lender" means, subject to Section 2.16(b),
any Lender that (a) has failed to (i) fund all or any portion of its Loans or participations in respect of Letters of Credit or
Swing Line Loans, within two Business Days of the date such Loans or participations in respect of Letters of Credit or Swing Line
Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that
such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which
conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied,
or (ii) pay to the Administrative Agent, the Swing Line Lender, any other Lender or any L/C Issuer any other amount required to
be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent,
the L/C Issuers, the Swing Line Lender or any other Lender in writing that it does not intend to comply with its funding obligations
hereunder or under other agreements in which it commits to extend credit generally or has made a public statement to that effect
(unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such
position is based on such Lender’s determination that a condition precedent to funding (which condition precedent together
with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has
failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to
the Administrative Agent or the Borrower that it will comply with its prospective funding obligations hereunder (provided that
such Lender shall cease to be a Defaulting Lender pursuant to this clause
(c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or
indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law or (ii) had appointed for
it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other
state or federal regulatory authority acting in such 


 




    8 


     


    

 


capacity;
provided that a Lender shall not be a Defaulting
Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent
company thereof by a Governmental Authority; so long as such ownership interest does not result in or provide such Lender with
immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on
its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements
made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more
of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error,
and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b)) as of the date established therefor by the
Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower,
the L/C Issuers, the Swing Line Lender and each other Lender promptly following such determination.


 


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


 


"Disposition"
or "Dispose" means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction)
of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated therewith; provided that the term "Disposition" or
"Dispose" shall not include any loss or damage to, or any condemnation or taking of, any property.


 


"Dollar"
and "$" mean lawful money of the United States.


 


“DP&L
Fifth Third Credit Facility” means the revolving credit facility created and evidenced by that certain Credit Agreement
dated as of May 10, 2013, by and among DP&L, as the borrower, Fifth Third Bank, as the Administrative Agent and the financial
institutions from time to time party thereto as lenders, as amended, replaced and refinanced in whole or in part from time to time.


 


“DP&L
First Mortgage Bonds” means those certain First Mortgage Bonds issued pursuant to the Indenture, dated as of October
1, 1935, as amended, supplemented or otherwise modified from time to time, between DP&L and The Bank of New York Mellon (or
its predecessors or successors).


 


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


 


"Energy-Related
Business" means any business engaged in or directly related to:  (a) the production, sale, brokerage, management,
transportation, delivery or other provision of energy products, including but not limited to, electricity, natural gas, oil, coal,
propane and renewable energy producing materials; (b) the provision of energy conservation services, including, but not limited
to, energy audits, installation of energy conservation devices, energy efficient equipment and related systems; (c) the provision
of services and equipment in connection with the


 




    9 


     


    

 


procurement of such energy
products or conservation of energy; (d) engineering, consulting, construction, operational or maintenance services in connection
with such energy products, the conservation of energy or with equipment utilizing such energy products; or (e) the manufacturing
of equipment used in connection with energy production or conservation.


 


"Environmental
Laws" means any and all applicable Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, agreements or governmental restrictions relating to pollution and the protection of the environment or the release
of any materials into the environment, including those related to Hazardous Materials, air emissions and discharges to waste or
public systems.


 


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


 


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


 


"ERISA"
means the Employee Retirement Income Security Act of 1974, as amended.


 


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


 


"ERISA Event"
means (a) a Reportable Event with respect to a Pension Plan; (b) the withdrawal of the Borrower or any ERISA Affiliate
from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such entity was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) the assessment of withdrawal liability under Title IV of ERISA upon the Borrower or any ERISA Affiliate
in connection with the Borrower’s or any ERISA Affiliate’s complete or partial withdrawal from a Multiemployer Plan
or the Borrower’s or any ERISA Affiliate’s notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate or the treatment of a Pension Plan amendment as a termination under Section 4041 or 4041A of
ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any event or condition which constitutes
grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan;
or (g)  the imposition of any liability under Title IV of ERISA


 




    10 


     


    

 


upon the Borrower or
any ERISA Affiliate, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA.


 


"Eurodollar
Rate" means, for any Interest Period, the interest rate per annum determined by the Administrative Agent by dividing (the
resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the rate which appears on the Bloomberg
Page BBAM1 (or on such other substitute Bloomberg page that displays rates at which Dollar deposits are offered by leading banks
in the London interbank deposit market), or the rate which is quoted by another source selected by the Administrative Agent as
an authorized information vendor for the purpose of displaying rates at which Dollar deposits are offered by leading banks in the
London interbank deposit market (for purposes of this definition, an "Alternate Source"), at approximately 11:00
a.m., London time, two (2) Business Days prior to the commencement of such Interest Period as the London interbank offered rate
for Dollars for an amount comparable to such Eurodollar Rate Loan being made and having a borrowing date and a maturity comparable
to such Interest Period (or if there shall at any time, for any reason, no longer exist a Bloomberg Page BBAM1 (or any substitute
page) or any Alternate Source, a comparable replacement rate determined by the Administrative Agent at such time (which determination
shall be conclusive absent manifest error)), by (ii) a number equal to 1.00 minus the Eurodollar Reserve Percentage.  Notwithstanding
the foregoing, if the Eurodollar Rate as determined under any method above would be less than zero (0.00), such rate shall be deemed
to be zero (0.00) for purposes of this Agreement.


 


The Eurodollar Rate
shall be adjusted with respect to any Loan to which the Eurodollar Rate applies that is outstanding on the effective date of any
change in the Eurodollar Reserve Percentage as of such effective date.  The Administrative Agent shall give prompt notice
to the Borrower of the Eurodollar Rate as determined or adjusted in accordance herewith, which determination shall be conclusive
absent manifest error


 


"Eurodollar
Rate Committed Loan" means a Committed Loan that is a Eurodollar Rate Loan.


 


"Eurodollar
Rate Loan" means a Loan that bears interest at a rate based on clause (a) of the definition of "Eurodollar Rate".


 


“Eurodollar
Reserve Percentage” shall mean as of any day the maximum percentage in effect on such day, as prescribed by the Board
of Governors of the Federal Reserve System (or any successor) for determining the reserve requirements (including supplemental,
marginal and emergency reserve requirements) with respect to eurocurrency funding.


 


"Event of Default"
has the meaning specified in Section 8.01.


 


"Exchange Act"
means the Securities and Exchange Act of 1934, as amended.


 


"Excluded Taxes"
means, any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment
to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits
Taxes, in each case, (i) imposed as a result of such Recipient being organized under the


 




    11 


     


    

 


laws of, or having its
principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political
subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed
on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant
to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to
an assignment request by the Borrower under Section 10.13) or (ii) such Lender changes its Lending Office, except in each
case to the extent that, pursuant to Section 3.01(a) or (c), amounts with respect to such Taxes were payable either
to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed
its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (d) any
U.S. federal withholding Taxes imposed pursuant to FATCA.


 


"Existing Credit
Agreements" means collectively, (i) that certain term loan credit agreement dated as of May 10, 2013 among Parent, PNC
Bank, National Association, as Administrative Agent and the financial institutions from time to time party thereto as lenders,
as amended, replaced and refinanced in whole or in part from time to time prior to the date hereof and (ii) that certain revolving
credit agreement dated as of May 10, 2013 among Parent, the Administrative Agent and the financial institutions from time to time
party thereto as lenders, as amended, replaced and refinanced in whole or in part from time to time prior to the date hereof.


 


“Existing
Letters of Credit” means those certain letters of credit set forth on Schedule 1.01 hereto.


 


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


 


"Federal Funds
Rate" means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding
such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to two (2) or more Federal funds brokers on such day on such transactions
as selected by the Administrative Agent.


 


"Fee Letter"
means that certain letter agreement dated June 1, 2015 among the Borrower and the Arrangers.


 


“Fitch"
means Fitch Investors Service Inc. and any successor thereto.


 




    12 


     


    

 


“Fitch Rating”
means, on any date of determination, the rating accorded the Borrower’s senior unsecured long-term debt by Fitch (or if the
Obligations are secured and there is a rating accorded to the Borrower’s senior secured long-term debt by Fitch, then such
senior secured long-term debt rating; but if not, the senior unsecured long-term debt rating; or, if neither such rating is available,
the Borrower’s long-term issuer default rating accorded to it by Fitch).


 


"Foreign Lender"
means (a) if the Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is not a U.S. Person, a
Lender that is a resident or organized under the laws of a jurisdiction other than that in which the Borrower is resident for tax
purposes (including such a Lender when acting in the capacity of an L/C Issuer). For purposes of this definition, the United States,
each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.


 


"FPA"
means the Federal Power Act, as amended, and all rules and regulations promulgated thereunder.


 


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


 


"Fronting Exposure"
means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuers, such Defaulting Lender’s Applicable
Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect
to the Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line Loans other than Swing Line Loans
as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized
in accordance with the terms hereof.


 


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


 


"GAAP"
means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in
the United States, that are applicable to the circumstances as of the date of determination, consistently applied and subject to
the provisions of Section 1.03.


 


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


 




    13 


     


    

 


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


 


"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.


 


“Immaterial
Subsidiary” means a Subsidiary that (a) represents less than 1% of the Consolidated Tangible Assets of the Borrower and
its Subsidiaries as would be shown in the consolidated financial statements of the Borrower and its Subsidiaries as at the beginning
of the twelve (12) month period ending with the month in which such determination is made or (b) is responsible for less than 1%
of the consolidated net sales or of the Consolidated Net Income of the Borrower and its Subsidiaries as reflected in the financial
statements referred to in clause (a) above.


 


"Indebtedness"
means, as to any Person at a particular time, without duplication, all of the following:


 


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


 


(b)all
direct or contingent obligations of such Person arising under letters of credit (including standby and commercial) and bankers’
acceptances;


 




    14 


     


    

 


(c)all
obligations of such Person to pay the deferred purchase price of capital assets or services that in accordance with GAAP would
be shown on the liability side of the balance sheet of such Person;


 


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


 


(e)capital
leases and Synthetic Lease Obligations;


 


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


 


(g)the
full outstanding balance of trade receivables, notes or other instruments sold with full recourse (and the portion thereof subject
to potential recourse, if sold with limited recourse), other than in any such case any thereof sold solely for purposes of collection
of delinquent accounts; and


 


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


 


For all purposes hereof,
the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that
is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person and shall exclude trade payables and other similar accrued expenses
arising in the ordinary course of business, obligations in respect of insurance policies or performance or surety bonds that themselves
are not guarantees of Indebtedness (or drafts, acceptances or similar instruments evidencing the same or obligations in respect
of letters of credit supporting the payment of the same). The amount of any capital lease or Synthetic Lease Obligation as of any
date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.


 


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


 


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


 


"Information"
has the meaning specified in Section 10.07.


 


"Interest Payment
Date" means, (a) as to any Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the
respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment


 




    15 


     


    

 


Dates; and (b) as to
any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity
Date.


 


"Interest Period"
means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to
or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter, as selected by the Borrower
in its Committed Loan Notice; provided that:


 


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


 


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


 


(iii)no
Interest Period shall extend beyond the Maturity Date.


 


"Internal Revenue
Service" means the United States Internal Revenue Service, or any Governmental Authority succeeding to any of its principal
functions.


 


"Investment"
means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase
or other acquisition of Equity Interests of another Person (including any partnership or joint venture interest in such other Person),
(b) a loan, advance or capital contribution to, or a Guarantee, assumption, purchase or other acquisition of any debt (other than
accounts receivable and lease, utility or other deposits arising in the ordinary course of business on terms customary in the trade)
of, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which
the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series
of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of
any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of
such Investment, less any amount paid, repaid, returned, distributed or otherwise received in cash in respect of such Investment
not to exceed the original amount of such Investment. For the avoidance of doubt, the exchange of interests in electricity generating
units among tenants-in-common as described in Section 7.04(i), shall not constitute an Investment hereunder.


 


“Investment
Grade” means two of the three Rating Agencies rate the Parent’s senior unsecured long-term indebtedness equal to
or greater than the respective level set forth below:


 


	Fitch	Moody’s	S&P
	BBB-	Baa3	BBB-




    16 


     


    

 


"IP Rights"
has the meaning specified in Section 5.17.


 


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


 


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


 


"Laws"
means, as to any Person, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, regulations,
ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof
by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative
orders of, and agreements with, any Governmental Authority, binding upon such Person or to which such Person is subject.


 


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


 


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


 


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


 


"L/C Issuer"
means, individually or collectively as the context may indicate, (a) PNC Bank, National Association in its capacity as an issuer
of Letters of Credit hereunder, (b) Fifth Third in its capacity as an issuer of Letters of Credit hereunder, (c) Bank of America,
N.A, in its capacity as an issuer or Letters of Credit hereunder, (d) any other Lender which consents to its appointment by the
Borrower as an issuer of Letters of Credit hereunder in its capacity as an issuer of Letters of Credit hereunder and (e) any successor
issuer of Letters of Credit hereunder.


 


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


 


"Lender"
has the meaning specified in the introductory paragraph hereto, and, as the context requires, includes the Swing Line Lender.


 




    17 


     


    

 


"Lending Office"
means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire,
or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.


 


"Letter of
Credit" means any standby letter of credit issued hereunder and shall include the Existing Letters of Credit.


 


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


 


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


 


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


 


"Letter of
Credit Sublimit" means an amount equal to $50,000,000. The Letter of Credit Sublimit is part of, and not in addition to,
the Aggregate Commitments.


 


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


 


"Loan"
means an extension of credit by a Lender to the Borrower under Article II in the form of a Committed Loan or a Swing Line
Loan.


 


"Loan Documents"
means this Agreement, each Note, each Issuer Document, any agreement creating or perfecting rights in Cash Collateral pursuant
to the provisions of Section 2.15 of this Agreement and the Fee Letter.


 


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


 


"Material Adverse
Effect" means (a) a material adverse change in, or a material adverse effect on, the operations, business, assets, properties,
liabilities (actual or contingent) or financial condition of the Borrower and its Subsidiaries, taken as a whole; (b) a material
impairment of the rights and remedies of the Administrative Agent or the Lenders under any Loan Document, or of the ability of
the Borrower to perform its obligations under any Loan Document; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Borrower of any Loan Document; provided that the Separation Transactions shall not
constitute a Material Adverse Effect.


 


"Maturity Date"
means July 31, 2020.


 


"Moody’s"
means Moody’s Investors Service, Inc. and any successor thereto.


 




    18 


     


    

 


"Moody’s
Rating" means, on any date of determination, the rating accorded the Borrower’s senior unsecured long-term debt
by Moody’s (or if the Obligations are secured, the rating accorded to the Borrower’s senior secured long-term debt
by Moody’s), or if such rating is unavailable, the Borrower’s long-term issuer credit rating accorded to it by Moody’s.


 


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


 


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


 


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


 


"Note"
means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form
of Exhibit B.


 


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


 


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


 


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


 


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


 




    19 


     


    

 


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


 


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


 


"Parent"
means DPL Inc., an Ohio corporation.


 


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


 


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


 


"PBGC"
means the Pension Benefit Guaranty Corporation or any successor.


 


“Pension Funding
Rules” means the rules of the Code and ERISA regarding minimum required contributions (including any installment payment
thereof) to Pension Plans and set forth in Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of
ERISA.


 


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


 


"Permitted
Acquisition" means and includes any Acquisition as to which all of the following conditions are satisfied:  (a) such
Acquisition (i) involves a line or lines of an Energy-Related Business, and (ii) involves a Person or a line or lines
of business that are located and operated in the United States; (b) no Default or Event of Default shall exist prior to or
immediately after giving effect to such Acquisition; (c) such Acquisition is not being consummated on a hostile basis and
has been approved by the board of directors of the target Person and no material challenge to such Acquisition shall be pending
or threatened by any shareholder or director of the seller or Person to be acquired, and (d) as of the date of the consummation
of such Acquisition, all approvals required in connection therewith shall have been obtained.


 


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


 




    20 


     


    

 


"Platform"
has the meaning specified in Section 6.02.


 


“Pro Forma
Effect” means, for any Investment pursuant to Section 7.02(d) or any Disposition pursuant to Section 7.04(h),
whether actual or proposed, for purposes of determining compliance with the financial covenants in Section 7.11, each such
Investment or Disposition shall be deemed to have occurred on and as of the first day of the relevant fiscal period, and the following
pro forma adjustments shall be made:


 


(a)               
in the case of an actual or proposed Disposition, all income statement items (whether positive or negative) attributable
to the line of business or the Person subject to such Disposition shall be excluded from the results of the Borrower and its Subsidiaries
for the relevant fiscal period;


 


(b)              
in the case of an actual or proposed Acquisition, income statement items (whether positive or negative) attributable to
the property, line of business or the Person subject to such Acquisition shall be included in the results of the Borrower and its
Subsidiaries for the relevant fiscal period;


 


(c)               
any Indebtedness actually or proposed to be incurred or assumed in such Investment or Disposition shall be deemed to have
been incurred as of the first day of the applicable fiscal period, and interest thereon shall be deemed to have accrued from such
day on such Indebtedness at the applicable rates provided therefor (and in the case of interest that does or would accrue at a
formula or floating rate, at the rate in effect at the time of determination) and shall be included in the results of the Borrower
and its Subsidiaries for such fiscal period and any Indebtedness repaid in connection with such Investment or Disposition shall
be deemed to have been repaid as of the first day of the applicable fiscal period; and


 


(d)              
any historical extraordinary non-recurring costs or expenses or other verifiable costs or expenses that will not continue
after the Investment or Disposition may be eliminated and other expenses and cost savings may be reflected provided that such costs,
expenses and cost savings are (A) reflected on a basis consistent with Regulation S-X promulgated by the Securities and Exchange
Commission or (B) attributable to operating or other efficiencies reasonably expected to be realized as a result of such Investment,
as controlled and operated by the Borrower, provided that the elimination of all such costs and expenses and the reflection of
such cost savings under this paragraph (d) shall be reasonably acceptable to at least seventy-five percent (75%) of the
Arrangers.


 


"Public Lender"
has the meaning specified in Section 6.02.


 


“PUCO”
means the Public Utilities Commission of Ohio.


 


"Rating"
means any of the Fitch Ratings, Moody’s Ratings or S&P Ratings.


 


"Rating Agency"
means any of Fitch, Moody’s or S&P.


 


“Recipient”
means the Administrative Agent and any Lender.


 




    21 


     


    

 


"Redeemable
Stock" means, with respect to any Person, any Equity Interests of such Person that (a) is by its terms subject to
mandatory redemption, in whole or in part, pursuant to a sinking fund, scheduled redemption or similar provisions, at any time
prior to the Maturity Date; or (b) otherwise is required to be repurchased or retired on a scheduled date or dates, upon the
occurrence of any event or circumstance, at the option of the holder or holders thereof, or otherwise, at any time prior to the
Maturity Date, other than any such repurchase or retirement occasioned by a "change of control" or similar event.


 


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


 


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


 


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


 


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


 


"Required Lenders"
means, as of any date of determination, Lenders having more than 50% (or if there are fewer than three Lenders, Lenders having
100%) of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of the L/C Issuers to
make L/C Credit Extensions have been terminated pursuant to Section 8.02, Lenders holding in the aggregate more than 50%
(or if there are fewer than three Lenders, 100%) of the Total Outstandings (with the aggregate amount of each Lender’s risk
participation and funded participations in L/C Obligations and Swing Line Loans being deemed "held" by such Lender for
purposes of this definition); provided that the Commitment of, and the portion of the Total Outstandings held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.


 


"Responsible
Officer" means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller
of the Borrower and, solely for purposes of the delivery of incumbency certificates pursuant to Section 4.01, the
secretary or any assistant secretary of the Borrower or, in each case, any officer of the Borrower with a similar title. Any document
delivered hereunder that is signed by a Responsible Officer of the Borrower shall be conclusively presumed to have been authorized
by all necessary corporate, partnership and/or other action on the part of the Borrower and such Responsible Officer shall be conclusively
presumed to have acted on behalf of the Borrower.


 


"Restricted
Payment" means any dividend or other distribution (whether in cash, securities or other property) with respect to any
Equity Interest of the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,


 




    22 


     


    

 


cancellation or termination
of any such Equity Interest, or on account of any return of capital to the Borrower’s stockholders, partners or members (or
the equivalent Person thereof).


 


"S&P"
means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. and any successor thereto.


 


"S&P Rating"
means, on any date of determination, the rating accorded to the Borrower’s senior unsecured long-term debt by S&P (or
if the Obligations are secured, the rating accorded to the Borrower’s senior secured long-term debt by S&P), or if such
rating is unavailable, the Borrower’s long-term issuer credit rating accorded to it by S&P.


 


“Sanction(s)”
means any sanction administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”),
the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury (“HMT”)
or other relevant sanctions authority.


 


"SEC"
means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.


 


“Separation
Transactions” means the restructuring of the Borrower’s operations in accordance with an order by PUCO, including
the separation of the Borrower’s generation assets from its transmission and distribution assets, in compliance with the
laws of the state of Ohio and any rules and regulations thereunder.


 


"Short Term
Investments" means short-term investments as defined by GAAP.


 


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


 


"Substantial
Portion" means, with respect to the property of the Borrower and its Subsidiaries, property that (a) represents more
than 20% of the Consolidated Tangible Assets of the Borrower and its Subsidiaries as would be shown in the consolidated financial
statements of the Borrower and its Subsidiaries as at the beginning of the twelve-month period ending with the month in which such
determination is made or (b) is responsible for more than 20% of the consolidated net sales or of the Consolidated EBITDA
of the Borrower and its Subsidiaries as reflected in the financial statements referred to in clause (a) above.


 


"Swap Contract"
means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index


 




    23 


     


    

 


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


 


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


 


"Swing Line
Borrowing" means a borrowing of a Swing Line Loan pursuant to Section 2.04.


 


"Swing Line
Lender" means PNC Bank, National Association in its capacity as provider of Swing Line Loans, or any successor swing line
lender hereunder.


 


"Swing Line
Loan" has the meaning specified in Section 2.04(a).


 


"Swing Line
Loan Notice" means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall
be substantially in the form of Exhibit A-2.


 


"Swing Line
Sublimit" means an amount equal to the lesser of (a) $17,500,000 and (b) the Aggregate Commitments. The Swing Line Sublimit
is part of, and not in addition to, the Aggregate Commitments.


 


"Synthetic
Lease Obligation" means the monetary obligation of a Person under any lease (a) that is accounted for by the lessee as
an operating lease and (b) under which the lessee is intended to be the "owner" of the leased property for Federal income
tax purposes.


 


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


 


“Tax Exempt
Agreements” means (i) those certain Reimbursement Agreements between JP Morgan Chase Bank, N.A., as administrative agent
and as fronting bank, the LC participants identified therein and DP&L dated May 31, 2013, until the termination thereof, and
(ii) that


 




    24 


     


    

 


certain Bond Purchase
Covenants Agreement to be entered into between DP&L, SunTrust Bank and the several financial institutions from time to time
party thereto, relating to collateralized pollution control bonds.


 


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


 


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


 


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


 


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


 


“US Bank Credit
Facility” means that certain Credit Agreement dated as of the date hereof by and among the Parent, as borrower, U.S.
Bank National Association, as administrative agent, PNC Bank, National Association as co-syndication agents, Bank of America, N.A.,
as documentation agent, and the financial institutions from time to time party thereto as lenders, as amended, replaced and refinanced
in whole or in part from time to time.


 


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


 


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


 


“Withholding
Agent” means the Borrower and the Administrative Agent.


 


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


 


(a)             The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without limitation."
The word "will" shall be construed to have the same meaning and effect as the word "shall." Unless
the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors
and assigns, (iii) the words "hereto," "herein," "hereof" and "hereunder,"
and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and
not to any


 




    25 


     


    

 


particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles
and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law
shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference
to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented
from time to time, and (vi) the words "asset" and "property" shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts
and contract rights.


 


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


 


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


 


1.03         
Accounting Terms. (a)  Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with,
and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this
Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in
a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed
herein. Notwithstanding the foregoing, for purposes of determining compliance with any covenant (including the computation of any
financial covenant) contained herein, Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried at 100% of
the outstanding principal amount thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded.


 


(b)              
Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement
set forth in any Loan Document, and either the Borrower or the Required Lenders shall so request, the Administrative Agent and
the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light
of such change in GAAP (subject to the approval of the Required Lenders not to be unreasonably withheld or delayed); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other
documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations
of such ratio or requirement made before and after giving effect to such change in GAAP.


 


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


 




    26 


     


    

 


1.05         
Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time
(daylight or standard, as applicable).


 


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


 


ARTICLE
II.  the COMMITMENTS and Credit Extensions


 


2.01         
Committed Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make loans in
Dollars (each such loan, a "Committed Loan") to the Borrower from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Commitment;
provided, however, that after giving effect to any Committed Borrowing, (i) the Total Outstandings shall not exceed
the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of
the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment. Within the limits of each Lender’s
Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section 2.01, prepay
under Section 2.05, and reborrow under this Section 2.01. Committed Loans may be Base Rate Loans or Eurodollar Rate
Loans, as further provided herein.


 


2.02         
Borrowings, Conversions and Continuations of Committed Loans.


 


(a)              Each Committed Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of Eurodollar
Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days prior to the requested
date of any Committed Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Committed Loans and (ii) on the requested date of any Borrowing of Base Rate Committed Loans. Each telephonic
notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent
of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each Borrowing
of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Committed Borrowing of or conversion
to Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each
Committed Loan Notice (whether telephonic or written) shall specify (i) whether the Borrower is requesting a Committed Borrowing,
a conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Committed
Borrowing, conversion or continuation, as the case may be (which shall be a


 




    27 


     


    

 


Business Day), (iii)
the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed
or to which existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect
thereto. If the Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower fails to give
a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or converted to,
Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Committed Borrowing of, conversion
to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will
be deemed to have specified an Interest Period of one month.


 


(b)              
Following receipt of a Commitment Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount
of its Applicable Percentage of the applicable Committed Loans, and if no timely notice of a conversion or continuation is provided
by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans
described in the preceding subsection. In the case of a Committed Borrowing, each Lender shall make the amount of its Committed
Loan available in Dollars to the Administrative Agent in immediately available funds at the Administrative Agent’s Office
not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received immediately available to the Borrower in Dollars either by (i) crediting
the account of the Borrower on the books of PNC Bank, National Association with the amount of such funds or (ii) wire transfer
of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent
by the Borrower.


 


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


 


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


 


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


 




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2.03         Letters
of Credit.


 


(a)            The
Letter of Credit Commitment.


 


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


 


(ii)            No
L/C Issuer shall issue any Letter of Credit, if:


 


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


 


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


 


(iii)          No L/C Issuer shall be under any obligation to issue any Letter of Credit if:


 


(A)            
any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain
such L/C Issuer from issuing the Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether
or not having the force of law) from any


 




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Governmental
Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of
letters of credit generally or the Letter of Credit in particular or shall impose upon such L/C Issuer with respect to the Letter
of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not
in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which such L/C Issuer in good faith deems material to it, unless the Borrower confirms it will pay the
foregoing;


 


(B)             
the issuance of the Letter of Credit would violate one or more customary and reasonable policies of such L/C Issuer applicable
to letters of credit generally and applied by such L/C Issuer to other similarly situated borrowers under similar credit facilities;


 


(C)             
except as otherwise agreed by the Administrative Agent and such L/C Issuer, the Letter of Credit is in an initial stated
amount less than $500,000;


 


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


 


(E)             
any Lender is at that time a Defaulting Lender, unless the L/C Issuers have entered into arrangements, including the delivery
of Cash Collateral, satisfactory to the L/C Issuers (in their sole discretion) with the Borrower or such Lender to eliminate the
L/C Issuers’ actual or potential Fronting Exposure (after giving effect to Section 2.16(a)(iv)) with respect to the
Defaulting Lender arising from that Letter of Credit and all other L/C Obligations as to which the L/C Issuers have actual or potential
Fronting Exposure, as they may elect in their sole discretion.


 


(iv)          No
L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue the Letter of Credit
in its amended form under the terms hereof.


 


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


 


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


 




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such acts or
omissions, and (B) as additionally provided herein with respect to each L/C Issuer.


 


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


 


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


 


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


 




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Credit in an
amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.


 


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


 


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


 


(c)           Drawings and Reimbursements; Funding of Participations.


 


(i)                
In each case upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit
and upon payment to a beneficiary under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the Administrative
Agent thereof. Not later than 4:00 p.m. on the date of any payment by the applicable L/C Issuer under a Letter of Credit, if the
Borrower has been so notified at or before 11:00 a.m. on such date, otherwise not later than 11:00 a.m. on the next Business Day
(each such date, an "Honor Date"), the Borrower shall reimburse such L/C Issuer through the Administrative Agent
in an amount equal to the amount of such drawing. If the Borrower fails to so reimburse the applicable L/C Issuer by such time,
the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the "Unreimbursed
Amount"), and the amount of such Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed
to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor


 




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Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Aggregate Commitments and the conditions
set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the applicable L/C Issuer
or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.


 


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


 


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


 


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


 


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


 




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reimburse the
applicable L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest
as provided herein.


 


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


 


(d)           Repayment of Participations.


 


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


 


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


 


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


 




    34 


     


    

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


 


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


 


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


 


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


 


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


 


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


 


(f)            Role
of L/C Issuer. Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the applicable
L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority
of the Person executing or delivering any such document. None of the applicable L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of the applicable L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer
Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or


 




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transferee with respect
to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude
the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any
other agreement. None of the applicable L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the applicable L/C Issuer shall be liable or responsible for any of the matters described in clauses
(i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding,
the Borrower may have a claim against any such Person, and such Person may be liable to the Borrower, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves
were caused by such Person’s willful misconduct or gross negligence or such Person’s willful failure to pay under any
Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit.  In furtherance and not in limitation of the foregoing, the applicable L/C Issuer
may accept documents that appear on their face to be in order, without responsibility for further investigation, and such L/C Issuer
shall not be responsible for the validity or sufficiency of any instrument by a beneficiary transferring or assigning or purporting
to transfer or assign a Letter of Credit or the beneficiary’s rights or benefits thereunder or proceeds thereof, in whole
or in part, which may prove to be invalid or ineffective for any reason.


 


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


 


(h)              Letter
of Credit Fees. The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable
Percentage a Letter of Credit fee (the "Letter of Credit Fee") for each Letter of Credit equal to the
Applicable Rate times the daily amount available to be drawn under such Letter of Credit; provided, however,
any Letter of Credit Fees otherwise payable for the account of a Defaulting Lender with respect to any Letter of Credit as to
which such Defaulting Lender has not provided Cash Collateral satisfactory to the applicable L/C Issuer pursuant to this Section
2.03 shall be payable, to the maximum extent permitted by applicable Law, to the other Lenders in accordance with the upward
adjustments in their respective Applicable Percentages allocable to such Letter of Credit pursuant to Section 2.16(a)(iv),
with the balance of such fee, if any, payable to such L/C Issuer for its own account. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.06. Letter


 




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of Credit Fees shall
be (i) due and payable on the last Business Day of each March, June, September and December, commencing with the first such date
to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii)
computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available
to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request
of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.


 


(i)                Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to (i) each L/C Issuer
for its own account a fronting fee with respect to each Letter of Credit issued by it, at the rate per annum specified in the
Fee Letter, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears and
(ii) each other L/C Issuer for its own account a fronting fee with respect to each Letter of Credit issued by it, at the rate
per annum agreed to by the Borrower and such L/C Issuer, computed on the daily amount available to be drawn under such Letter
of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the last Business Day of each March,
June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first
payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with Section 1.06. In addition, the Borrower shall pay
directly to each L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and
other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are nonrefundable.


 


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


 


(k)              Letters
of Credit Reports. For so long as any Letter of Credit issued by an L/C Issuer is outstanding, such L/C Issuer shall
deliver to the Administrative Agent on the last Business Day of each calendar month, and on each date that an L/C Credit Extension
occurs with respect to any such Letter of Credit, a report in the form of Exhibit F, appropriately completed with the information
for every outstanding Letter of Credit issued by such L/C Issuer.


 


2.04         
Swing Line Loans.


 


(a)              The
Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements of
the other Lenders set forth in this Section 2.04, will make loans (each such loan, a "Swing Line Loan")
to the Borrower from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any
time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with
the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may exceed


 




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the amount of such Lender’s
Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall
not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable
Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and provided,
further, that the Borrower shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan.
Within the foregoing limits, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section
2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate
Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of
such Lender’s Applicable Percentage times the amount of such Swing Line Loan.


 


(b)           Borrowing
Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing Line Lender
and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and
the Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed,
which shall be a minimum of $500,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan
Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone
or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m.
on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line Loan as a result
of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of
the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof,
the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to the Borrower at its office by crediting the account of the Borrower on the books of
the Swing Line Lender in immediately available funds.


 


(c)           Refinancing of Swing Line Loans.


 


(i)                
The Swing Line Lender at any time in its sole discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each Lender make a Base Rate Committed Loan in an amount equal
to such Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in
writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements
of Section 2.02, without regard to the minimum and multiples specified


 




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therein for
the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions
set forth in Section 4.02. The Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan
Notice promptly after delivering such notice to the Administrative Agent. Each Lender shall make an amount equal to its Applicable
Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in immediately available
funds (and the Administrative Agent may apply Cash Collateral available with respect to the applicable Swing Line Loan) for the
account of the Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such
Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed
to have made a Base Rate Committed Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received
to the Swing Line Lender.


 


(ii)              
If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i),
the request for Base Rate Committed Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Lenders fund its risk participation in the relevant Swing Line Loan and each Lender’s
payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed
payment in respect of such participation.


 


(iii)            
If any Lender fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required
to be paid by such Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section
2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender (acting through the Administrative Agent),
on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment
is immediately available to the Swing Line Lender at a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the Swing Line Lender in accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Swing Line Lender in connection with the foregoing. If such Lender pays such
amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in
the relevant Committed Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of
the Swing Line Lender submitted to any Lender (through the Administrative Agent) with respect to any amounts owing under this clause
(iii) shall be conclusive absent manifest error.


 


(iv)            
Each Lender’s obligation to make Committed Loans or to purchase and fund risk participations in Swing Line Loans pursuant
to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right which such Lender may have against the Swing Line Lender, the Borrower
or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided, however,


 




    39 


     


    

 


that each Lender’s
obligation to make Committed Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section
4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Borrower to repay Swing
Line Loans, together with interest as provided herein.


 


(d)           Repayment
of Participations.


 


(i)                
At any time after any Lender has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender
receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such Lender its Applicable Percentage
thereof in the same funds as those received by the Swing Line Lender.


 


(ii)              
If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required
to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to
any settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay to the Swing Line Lender its Applicable
Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount
is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request
of the Swing Line Lender. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations
and the termination of this Agreement.


 


(e)            Interest
for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrower for interest on the
Swing Line Loans. Until each Lender funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.04
to refinance such Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage
shall be solely for the account of the Swing Line Lender.


 


(f)             Payments Directly to Swing Line Lender. The Borrower shall make all payments of principal and interest in respect
of the Swing Line Loans directly to the Swing Line Lender.


 


2.05         Prepayments.


 


(a)            The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay Committed
Loans in whole or in part without premium or penalty (other than as set forth in Section 3.05); provided that (i)
such notice must be received by the Administrative Agent not later than 1:00 p.m. (A) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurodollar
Rate Loans shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof; and (iii) any prepayment
of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in
each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of
such prepayment and the Type(s) of Committed Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest
Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender’s Applicable Percentage of


 




    40 


     


    

 


such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein; provided that a notice of prepayment delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of the other credit facilities or instruments of Indebtedness or the occurrence
of any other specified event, 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 conditions are not satisfied. Any prepayment of a Eurodollar Rate Loan shall
be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section
3.05. Subject to Section 2.16, each such prepayment shall be applied to the Committed Loans of the Lenders in accordance
with their respective Applicable Percentages.


 


(b)             The
Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time,
voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must
be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and
(ii) any such prepayment shall be in a minimum principal amount of $500,000. Each such notice shall specify the date and amount
of such prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein.


 


(c)              If
for any reason the Total Outstandings at any time exceed the Aggregate Commitments then in effect, the Borrower shall immediately
prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however,
that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b) unless
after the prepayment in full of the Committed Loans and the Swing Line Loan the Total Outstandings exceed the Aggregate Commitments
then in effect.


 


(d)             If
the Borrower fails to obtain any approval, consent or authorization from any Governmental Authority which is necessary or required
in order to permit the Borrower to incur Obligations hereunder on or before December 31 of each calendar year, then the Borrower
shall immediately prepay all outstanding Loans and Cash Collateralize all L/C Obligations to the extent, and only to the extent,
such outstanding Loans and L/C Obligations are not authorized by the then effective necessary or required approvals, consents
and authorizations from such Governmental Authorities.


 


2.06         
Termination or Reduction of Commitments.  The Borrower may, upon notice to the Administrative Agent, terminate
the Aggregate Commitments, or from time to time permanently reduce the Aggregate Commitments; provided that (i) any such
notice shall be received by the Administrative Agent not later than 1:00 p.m. three Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000
in excess thereof, (iii) the Borrower shall not terminate or reduce the Aggregate Commitments if, after giving effect thereto and
to any concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving
effect to any reduction of the Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount
of the Aggregate


 




    41 


     


    

 


Commitments, the Letter
of Credit Sublimit shall be automatically reduced by the amount of such excess. The Administrative Agent will promptly notify the
Lenders of any such notice of termination or reduction of the Aggregate Commitments. Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the effective date of such termination. A notice of Commitment
reduction delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities
or instruments of Indebtedness or the occurrence of any other specified event, 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 conditions are not satisfied.


 


2.07          Repayment
of Loans.


 


(a)             The
Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of Committed Loans outstanding on such
date.


 


(b)             The
Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date one to ten Business Days after such Loan is
made as mutually agreed upon by the Swing Line Lender and the Borrower, and (ii) the Maturity Date.


 


2.08         
Interest.


 


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


 


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


 


   (ii)
     If any amount (other than
principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (after any applicable notices
have been given and grace periods have expired), whether at stated maturity, by acceleration or otherwise, then upon the
request of the Required Lenders, such amount shall thereafter until such amount is paid in full bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws.


 


   (iii)      Upon the request of the Required Lenders, while any Event of Default pursuant to Section 8.01(g) exists, the Borrower
shall pay interest on the principal


 




    42 


     


    

amount of all
outstanding Loans hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.


 


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


 


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


 


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


 


(a)              Undrawn
Fee. The Borrower shall pay to the Administrative Agent for the account of each Lender in accordance with its Applicable Percentage,
an undrawn fee (the "Undrawn Fee") equal to the Applicable Rate times the actual daily amount by which
the Aggregate Commitments exceed the sum of (i) the Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations, subject to adjustment as provided in Section 2.16. For the avoidance of doubt, the Undrawn Fee will be calculated
without regard to outstanding Swing Line Loans. The Undrawn Fee shall accrue at all times during the Availability Period, including
at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly
in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur
after the Closing Date, and on the last day of the Availability Period. The Undrawn Fee shall be calculated quarterly in arrears,
and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied
by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.


 


(b)              Other
Fees. The Borrower shall pay to the Arrangers and the Administrative Agent for their own respective accounts fees in the amounts
and at the times specified in the Fee Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason
whatsoever. The Borrower shall pay to the Lenders such fees as shall have been separately agreed upon in writing in the amounts
and at the times so specified, such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.


 


2.10         
Computation of Interest and Fees. All computations of interest for Base Rate Loans (including Base Rate Loans determined
by reference to the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue
on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which
the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.12(a), bear interest for one day. Each determination by the


 




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Administrative Agent
of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.


 


2.11         
Evidence of Debt.


 


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


 


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


 


2.12         
Payments Generally; Administrative Agent’s Clawback.


 


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


 


(b)             (i)      Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any


 




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


 


(ii)         Payments by Borrower; Presumptions by Administrative Agent. Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the
L/C Issuers 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 L/C
Issuers, 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 L/C Issuers, 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 L/C Issuer, in immediately available funds with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.


 


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


 




    45 


     


    

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


 


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


 


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


 


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


 


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


 


(ii)              
the provisions of this Section shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant
to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of
a Defaulting Lender), (y) the application of Cash
Collateral provided for in Section 2.15,
or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its
Committed Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant,


 




    46 


     


    

other than
an assignment to the Borrower or any Affiliate thereof (as to which the provisions of this Section shall apply).


 


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


 


2.14           
Increase in Commitments.  


 


(a)               
Request for Increase. Provided that no Default exists, upon notice to the Administrative Agent (which shall promptly
notify the Lenders), the Borrower may from time to time, request an increase in the Aggregate Commitments by an amount (for all
such requests) not exceeding $100,000,000; provided that (i) any such request for an increase shall be in a minimum amount
of $10,000,000, and (ii) the Borrower may make a maximum of three such requests.  At the time of sending such notice, the
Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders).


 


(b)              
Lender Elections to Increase. Each Lender shall notify the Administrative Agent within such time period whether or
not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage
of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its
Commitment.


 


(c)               
Notification by Administrative Agent; Additional Lenders. The Administrative Agent shall notify the Borrower and
each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase
and subject to the approval of the Administrative Agent, each L/C Issuer and the Swing Line Lender (which approvals shall not be
unreasonably withheld or delayed), the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder
agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel.


 


(d)              
Effective Date and Allocations. If the Aggregate Commitments are increased in accordance with this Section, the Administrative
Agent and the Borrower shall determine the effective date (the "Increase Effective Date") and the final allocation
of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase
and the Increase Effective Date.


 


(e)               
Conditions to Effectiveness of Increase. As a condition precedent to such increase, the Borrower shall deliver to
the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date signed by a Responsible Officer
of the Borrower (x) certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase,
and (y) certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article
V are true and correct in all material respects


 




    47 


     


    

on and as of the Increase
Effective Date, except that (i) if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such
representation or warranty is true and correct in all respects, (ii) to the extent that such representations and warranties specifically
refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date (except that
if a qualifier relating to materiality, Material Adverse Effect or a similar concept applies, such representation or warranty is
true and correct in all respects) and (iii) for purposes of this Section 2.14, the representations and warranties contained
in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01, and (B) no Default exists.
Unless otherwise agreed by the Administrative Agent, the Borrower shall prepay any Committed Loans outstanding on the
Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep
the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments
under this Section.


 


(f)               
Conflicting Provisions. This Section shall supersede any provisions in Section 2.13 or 10.01 to the
contrary.


 


2.15         
  Cash Collateral.


 


(a)               Certain
Credit Support Events. Upon the request of the Administrative Agent or any L/C Issuer (i) if an L/C Issuer has honored any
full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing that has not been
refinanced as a Base Rate Loan hereunder, or (ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, the Borrower shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.
At any time that there shall exist a Defaulting Lender, immediately upon the request of the Administrative Agent or any L/C Issuer
or the Swing Line Lender, the Borrower shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover
all Fronting Exposure (after giving effect to Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender);
provided that, the Administrative Agent and each of the L/C Issuers agree not to, and
shall not, request, demand or otherwise require, and the Borrower shall have no obligation to deliver, pay or otherwise provide,
any such Cash Collateral pursuant to this sentence or the last sentence of Section 2.15(b) so long as the Borrower is not
permitted to deliver, pay or provide such Cash Collateral under the terms of any agreement (without giving effect to any provision
thereof permitting a general basket of liens) to which the Borrower is a party or is bound (other than any agreement entered into
with an Affiliate in which the Borrower has agreed to any such restriction for the benefit of such Affiliate).


 


(b)              Grant
of Security Interest; Borrower Exceptions. All Cash Collateral (other than credit support and other collateral not constituting
funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit accounts at PNC Bank, National Association;
provided that Cash Collateral delivered, paid or otherwise provided by the Borrower pursuant to the last sentence of Section
2.15(a) or the last sentence of this subsection (b) shall not be maintained in such accounts to the extent not permitted by
the terms of any agreement (without giving effect to any provision thereof permitting a general
basket of liens) to which the Borrower is a party or is


 




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bound (other
than any agreement entered into with an Affiliate in which the Borrower has agreed to any such restriction for the benefit of such
Affiliate). The Borrower, and to the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control
of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers and the Lenders (including the Swing
Line Lender), and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein,
and all other property so provided as Cash Collateral, and in all proceeds of the foregoing,
all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.15(c); provided
that the Borrower does not, and shall have no obligation to, grant or maintain any security interest in, or subject to the control
of the Administrative Agent, any Cash Collateral delivered, paid or otherwise provided by the Borrower pursuant to the last sentence
of Section 2.15(a) or the last sentence of this subsection (b) to the extent not permitted by the terms of any agreement
(without giving effect to any provision thereof permitting a general basket of liens) to
which the Borrower is a party or is bound (other than any agreement entered into with an Affiliate
in which the Borrower has agreed to any such restriction for the benefit of such Affiliate). Subject to the proviso under
Section 2.15(a), if at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim
of any Person other than the Administrative Agent or an L/C Issuer as herein provided, or that the total amount of such Cash Collateral
is less than the applicable Fronting Exposure and other obligations secured or supported, as applicable, thereby, the Borrower
or the relevant Defaulting Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative
Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.


 


(c)               
Application. Notwithstanding anything to the
contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.15 or Sections 2.03, 2.04,
2.05, 2.16 or 8.02 in respect of Letters of Credit or Swing Line Loans shall be held and applied to
the satisfaction of the specific L/C Obligations, Swing Line Loans, obligations to fund participations therein (including, as to
Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash
Collateral was so provided, prior to any other application of such property as may be provided for herein. 


 


(d)              
Release. Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or other obligations
shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto
(including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following
compliance with Section 10.06(b)(vi))) or (ii) the Administrative Agent’s good faith determination that there exists
excess Cash Collateral; provided, however, (x) that Cash Collateral furnished by or on behalf of the Borrower shall
not be released during the continuance of a Default or Event of Default (and following application as provided in this Section
2.16 may be otherwise applied in accordance with Section 8.03), and (y) the Person providing Cash Collateral and the
applicable L/C Issuer or Swing Line Lender, as applicable, may agree that Cash Collateral shall not be released but instead held
to support future anticipated Fronting Exposure or other obligations.


 


2.16         
  Defaulting Lenders.


 




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


 


(i)                
Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent
with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section
10.01, Section 10.06 or otherwise hereunder.


 


(ii)              
Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by the Administrative
Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VIII or
otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.08, shall be applied
at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts
owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any
amounts owing by such Defaulting Lender to the L/C Issuers or Swing Line Lender hereunder; third, if so determined by the
Administrative Agent or requested by any L/C Issuer or Swing Line Lender or the Borrower, to be held as Cash Collateral for future
funding obligations of such Defaulting Lender of any participation in any Swing Line Loan or Letter of Credit,
except to the extent not permitted under the terms of any agreement (without giving effect to any provision thereof permitting
a general basket of liens) to which the Borrower is a party or is bound (other than any agreement entered into with an Affiliate
in which the Borrower has agreed to any such restriction for the benefit of such Affiliate); fourth, as the Borrower
may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting
Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth,
if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro-rata in order
to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; sixth,
to the payment of any amounts owing to the Lenders, L/C Issuers or Swing Line Lender as a result of any judgment of a court of
competent jurisdiction obtained by any Lender, any L/C Issuer or Swing Line Lender against such Defaulting Lender as a result of
such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of
Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction
obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations
under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction;
provided that if (x) such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which
such Defaulting Lender has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were made at a time when
the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans
of, and L/C Borrowings owed to, all


 




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Non-Defaulting
Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Borrowings owed to, such Defaulting Lender
until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders
pro rata in accordance with the Commitments hereunder without giving effect to Section 2.16(a)(iv). Any payments, prepayments
or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or
to post Cash Collateral pursuant to this Section 2.16(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender,
and each Lender irrevocably consents hereto.


 


(iii)            
Certain Fees. A Defaulting Lender (x) shall not be entitled to receive any Undrawn Fee pursuant to Section 2.09(a)
for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that
otherwise would have been required to have been paid to that Defaulting Lender) and (y) shall be limited in its right to receive
Letter of Credit Fees as provided in Section 2.03(h).


 


(iv)            
Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any period in which there is a Defaulting
Lender, for purposes of computing the amount of the obligation of each Non-Defaulting Lender to acquire, refinance or fund participations
in Letters of Credit or Swing Line Loans pursuant to Section 2.03 and 2.04, the "Applicable Percentage"
of each Non-Defaulting Lender shall be computed without giving effect to the Commitment of that Defaulting Lender; provided
that, (i) each such reallocation shall be given effect only if, at the date the applicable Lender becomes a Defaulting Lender,
no Default or Event of Default exists; and (ii) the aggregate obligation of each Non-Defaulting Lender to acquire, refinance or
fund participations in Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of (1) the Commitment
of that Non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the Committed Loans of that Lender.


 


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


 


ARTICLE
III.        TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01         
Taxes.


 




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(a)             Payments
Free of Taxes; Obligation to Withhold; Payments on Account of Taxes. Any and all payments by or on account of any obligation
of the Borrower under any Loan Document shall be made free and clear of and without reduction or withholding for any Taxes, except
as required by applicable Law. If, however, applicable Laws require the applicable Withholding Agent to withhold or deduct any
Tax (as determined in the good faith discretion of an applicable Withholding Agent), then the applicable Withholding Agent shall
withhold or make such deductions as are determined by the applicable Withholding Agent to be required and shall timely pay the
full amount withheld or deducted to the relevant Governmental Authority in accordance with applicable Law. If such Tax is an Indemnified
Tax, then the sum payable by the Borrower shall be increased as necessary so that after any required withholding or the making
of all required deductions (including such deductions and withholdings applicable to additional sums payable under this Section
3.01) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction
been made.


 


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


 


(c)            Tax
Indemnifications. (i) Without limiting or duplicating the provisions of subsection (a) or (b) above, the Borrower shall, and
does hereby, indemnify each Recipient, and shall make payment in respect thereof within 15 days after written 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 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 setting forth in reasonable detail the amount and basis
for calculation of any such payment or liability delivered to the Borrower by a Lender or an L/C Issuer (with a copy to the Administrative
Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender or an L/C Issuer, shall be conclusive absent
manifest error.


 


(ii)              
Without limiting the provisions of subsection (a) or (b) above, each Lender and each L/C Issuer shall, and does hereby,
severally indemnify, and shall make payment in respect thereof within 15 days after written demand therefor, (A) the Administrative
Agent and the Borrower, as applicable, against any Taxes attributable to such Lender’s failure to comply with the provisions
of Section 10.06(d) relating to the maintenance of a Participant Register, and (B) the Administrative Agent and the Borrower, as
applicable, against any Excluded Taxes attributable to such Lender that are payable or paid by the Administrative Agent or any
Borrower (and not deducted or withheld by the Borrower or Administrative Agent in connection with any Loan Document, as applicable,
from any payment otherwise due hereunder to such Lender) 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 Borrower or the Administrative Agent (as applicable)
shall be conclusive


 




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absent manifest
error. Each Lender and each L/C Issuer hereby authorizes the Borrower or Administrative Agent to set off and apply any and all
amounts at any time owing by the Administrative Agent or the Borrower (as applicable) to such Lender or such L/C Issuer, as the
case may be, under this Agreement or any other Loan Document otherwise payable by the Administrative Agent or the Borrower (as
applicable) to the Lender from any other source against any amount due to the Borrower or Administrative Agent (as applicable)
under this clause (ii). The agreements in this clause (ii) shall survive the resignation and/or replacement of the Administrative
Agent, any assignment of rights by, or the replacement of, a Lender or an L/C Issuer, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all other Obligations.


 


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


 


(e)             Status of Lenders; Tax Documentation. (i) Any Lender or L/C Issuer 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 or L/C Issuer, if reasonably requested by the Borrower or the Administrative
Agent, shall deliver such other documentation prescribed by applicable Laws 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 or L/C Issuer is subject
to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences,
the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A),
(ii)(B) and (ii)(D) below) shall not be required if in the Lender’s or L/C Issuer’s reasonable judgment
such completion, execution or submission would subject such Lender or such L/C Issuer to any material unreimbursed cost or expense.


 


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


 


(A)         any
Lender or L/C Issuer 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 or L/C Issuer becomes a Lender or L/C Issuer under this Agreement (and from time to time thereafter upon
the reasonable request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender
or L/C Issuer is exempt from U.S. federal backup withholding tax;


 




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


 


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


 


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


 


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


 


(IV)to
the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI,
IRS Form W-8BEN-E (or W-8BEN if applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2
or Exhibit E-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 E-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 originals of any other form prescribed by applicable Law as a


 




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basis for claiming
exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as
may be prescribed by applicable Law to permit the Borrower or the Administrative Agent to determine the withholding or deduction
required to be made; and


 


(D)         if a payment made to a Lender or L/C Issuer under any Loan Document would be subject to U.S. federal withholding Tax imposed
by FATCA if such Lender or L/C Issuer 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 or L/C Issuer 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 or
L/C Issuer has complied with such Lender or L/C Issuer’s obligations under FATCA or to determine the amount to deduct and
withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA
after the date of this Agreement and for purposes of this Section 3.01 the term “applicable Laws” shall include
FATCA.


 


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


 


(f)               
Treatment of Certain Refunds. If any Recipient determines, in its sole discretion exercised in good faith, that it
has received a refund, credit or other benefit in respect of any Taxes as to which it has been indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal
to such refund, credit or other benefit (but only to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes giving rise to such refund, credit or other benefit), net of all reasonable
out-of-pocket expenses incurred by such Recipient and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that the Borrower, upon the request of the Recipient agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority)
to the Recipient in the event the Recipient is required to repay such refund, credit or other benefit to such Governmental Authority.
This subsection 3.01(f) shall not be construed to require the Recipient to make available its tax returns (or any other
information relating to its taxes that it deems confidential) to the Borrower or any other Person. Notwithstanding anything to
the contrary in this paragraph (f), in no event will the Administrative Agent or any Lender be required to pay any amount to the
Borrower pursuant to this paragraph (f) the payment of which would place the Administrative Agent or such Lender in a less favorable
net after-Tax position


 




    55 


     


    

 


than the Administrative
Agent or such Lender would have been in if the Taxes subject to indemnification and giving rise to such refund had not been deducted,
withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Taxes had never been
paid.


 


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


 


3.03         
Inability to Determine Rates. If in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation
thereof that (a) the Administrative Agent determines that (i) Dollar deposits are not being offered to banks in the London interbank
eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (ii) adequate and reasonable means
do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan
or in connection with an existing or proposed Base Rate Loan (in each case, with respect to clause (a)(i) above, “Impacted
Loans”), or (b) the Required Lenders reasonably determine that for any reason the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate


 




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Loan does not adequately
and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower
and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended (to
the extent of the affected Eurodollar Rate Loan or Interest Period), and (y) in the event of a determination described in the preceding
sentence with respect to the Eurodollar Rate component of the Base Rate, the utilization of the Eurodollar Rate component in determining
the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders in
the case of clause (b) above) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans (to the extent of the affected Eurodollar Rate Loans
or Interest Periods), or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate
Loans in the amount specified therein.


 


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


 


3.04         Increased Costs; Reserves on Eurodollar Rate Loans.


 


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


 


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


 


(ii)              
subject any Lender or any L/C Issuer 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, commitments
or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or


 


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


 




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and the result of any
of the foregoing shall be to increase the cost to such Lender, by an amount which such Lender deems to be material in its sole
discretion, of making converting to, continuing or maintaining any Loan the interest on which is determined by reference to the
Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer
of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue
any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether
of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the Borrower will pay to such
Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer,
as the case may be, for such additional costs incurred or reduction suffered; provided that such additional costs incurred
and reductions suffered shall be determined by such Lender’s or L/C Issuer’s, as the case may be, reasonable allocation
of the aggregate additional cost incurred or reduction suffered due to such events that are allocable to this Agreement. If the
Borrower so notifies the Administrative Agent within five Business Days after any Lender notifies the Borrower of any additional
cost incurred or reduction suffered pursuant to the foregoing provisions of this Section, the Borrower may convert all Eurodollar
Rate Loans of such Lender then outstanding into Base Rate Loans in accordance with the terms hereof.


 


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


 


(c)               
Certificates for Reimbursement. Each Lender and L/C Issuer shall notify the Borrower of any Change in Law that would
entitle such Person to any amount under subsection (a) or (b) of this Section as soon as reasonably practicable and promptly thereafter
deliver to the Borrower a written certificate setting forth the amounts due under such subsections and setting forth in reasonable
detail the calculations upon which such amounts were determined. A certificate of a Lender or an L/C Issuer setting forth the amount
or amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in subsection
(a) or (b) of this Section and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such
Lender or such L/C Issuer, as the


 




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case may be, the amount
shown as due on any such certificate within 20 days after receipt thereof.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 




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


 


3.06         
Mitigation Obligations; Replacement of Lenders.  


 


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


 


(b)             Replacement
of Lenders. If any Lender requests compensation under Section 3.04 or gives a notice under Section 3.02, or
if the Borrower is required to pay any Indemnified Taxes or additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 3.01, the Borrower may replace such Lender in accordance with Section
10.13.


 


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


 


ARTICLE
IV.              CONDITIONS
PRECEDENT TO Credit Extensions


 


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


 


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


 




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


 


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


 


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


 


(iv)            
such documents and certifications as the Administrative Agent may reasonably require to evidence that the Borrower is duly
organized or formed, and that the Borrower is validly existing, in good standing and qualified to engage in business in the jurisdiction
where it is organized;


 


(v)              
written opinion(s) of counsel to the Borrower, addressed to the Administrative Agent and each Lender, in form and substance
reasonably acceptable to the Administrative Agent; 


 


(vi)            
a certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied and (B) the current Ratings;


 


(vii)          
evidence that the Existing Credit Agreements and the DP&L Fifth Third Credit Facility have been or concurrently with
the Closing Date are being terminated and the obligations thereunder have been paid in full and any Liens securing obligations
under the Existing Credit Agreements and the DP&L Fifth Third Credit Facility have been or concurrently with the Closing Date
are being released; and


 


(viii)        
evidence that the conditions precedent to the effectiveness of the US Bank Credit Facility have been satisfied and all documentation
thereof and required thereunder has been executed.


 


(b)           Any
fees required to be paid on or before the Closing Date shall have been paid to the extent invoiced at least two (2) Business Days
prior to the Closing Date.


 


(c)            Receipt
by the Lenders of all documentation and other information required by regulatory authorities under applicable “know your
customer” and anti-money laundering rules and regulations requested by such Lender at least ten (10) days prior to the Closing
Date.


 


(d)           Unless
waived by the Arrangers, and subject to the provisions of the Fee Letter and the Commitment Letter, the Borrower shall have paid
all reasonable fees, charges and disbursements of counsel due to the Administrative Agent (directly to such counsel if requested
by the Administrative Agent) to the extent invoiced at least two (2) Business Days prior to the Closing Date and required to be
paid pursuant to the Fee Letters or the Commitment Letters.


 




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


 


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


 


(a)              The
representations and warranties of the Borrower contained in Article V shall be true and correct in all material respects
on and as of the date of such Credit Extension, except that (i) if a qualifier relating to materiality, Material Adverse Effect
or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects, (ii) to
the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and
correct in all material respects as of such earlier date (except that if a qualifier relating to materiality, Material Adverse
Effect or a similar concept applies, such representation or warranty shall be required to be true and correct in all respects),
(iii) for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section
5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section
6.01 and (iv) the representations and warranties contained in Section 5.05(c) and 5.06(a)(ii) do not need to
be true and correct for any Credit Extension after the initial Credit Extension.


 


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


 


(c)             The
Borrower has all approvals, consents and authorizations from PUCO which are necessary or required in order to permit the Borrower
to incur Obligations hereunder.


 


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


 


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


 


ARTICLE
V.              REPRESENTATIONS AND WARRANTIES


 


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


 




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


 


5.02         
Authorization; No Contravention. The execution, delivery and performance by the Borrower of each Loan Document, have
been duly authorized by all necessary corporate action, and do not and will not (a) contravene the terms of any of the Borrower’s
Organization Documents; (b) conflict with or result in any contravention of, or the creation of any Lien under, or require any
payment to be made under (i) any Contractual Obligation to which the Borrower is a party or the Borrower or the properties of the
Borrower or any of its Subsidiaries is bound or (ii) any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which the Borrower or its property is subject; or (c) violate any Law, except in any case referred to in clause
(b) or (c), to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect.


 


5.03         
Governmental Authorization; Other Consents. No approval, consent, exemption, authorization, or other action by, or notice
to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery
or performance by, or enforcement against, the Borrower of this Agreement or any other Loan Document, except for such approvals,
consents, exemptions, authorizations, actions, notices and filings (a) that have been obtained or made on or before the Closing
Date and are in full force and effect, and (b) from PUCO which are necessary or required annually in order to permit the Borrower
to incur or keep outstanding Obligations hereunder.


 


5.04         
Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly
executed and delivered by the Borrower. This Agreement constitutes, and each other Loan Document when so delivered will constitute,
a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to
Debtor Relief Laws and general equity and public policy principles.


 


5.05         
Financial Statements; No Material Adverse Effect.


 


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


 




    63 


     


    

any litigation, arbitration
or proceeding that could not reasonably be expected to have a Material Adverse Effect).


 


(b)             The
unaudited consolidated balance sheets of the Borrower and its Subsidiaries dated March 31, 2015, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were
prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present in all material respects the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to
the absence of footnotes and to normal year-end audit adjustments.


 


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


 


5.06         
Litigation.


 


(a)              There
are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Borrower, threatened, at law, in equity,
in arbitration or before any Governmental Authority, by or against the Borrower or any of its Subsidiaries that (i) question the
validity or the enforceability of the Loan Documents, or any of any action to be taken by the Borrower pursuant to any of the
Loan Documents, or (ii) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.


 


(b)             No
action, suit, proceeding or investigation has been instituted, or to the knowledge of the Borrower or any of its Subsidiaries,
threatened, and no rule, regulation, order, judgment or decree has been issued or proposed to be issued by any Governmental Authority
that, solely as a result of the incurrence of Obligations or the entering into this Agreement or any other Loan Document or any
transaction contemplated hereby or thereby, would cause or deem the Administrative Agent, any Lenders or any of their respective
Affiliates to be subject to, or not exempted from, regulation under the FPA.


 


5.07         
No Default. The Borrower and each Subsidiary are in full compliance with all material terms, covenants and conditions
of each of its Contractual Obligations, except for any noncompliance that could not, either individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation
of the transactions contemplated by this Agreement or any other Loan Document.


 


5.08         
Ownership of Property. The Borrower and each Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in
title or interest as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


5.09         
Environmental Compliance. The Borrower and each of its Subsidiaries is in compliance with all Environmental Laws governing
its business, except to the extent that any


 




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such failure to comply
(together with any resulting penalties, fines or forfeitures) would not reasonably be expected to have a Material Adverse Effect.
All licenses, permits, registrations or approvals required for the conduct of the business of the Borrower and each of its Subsidiaries
under any Environmental Law have been secured and the Borrower and each of its Subsidiaries is in substantial compliance therewith,
except for such licenses, permits, registrations or approvals the failure to secure or to comply therewith is not reasonably likely
to have a Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries has received written notice, or otherwise knows,
that it is in any respect in noncompliance with, breach of or default under any applicable writ, order, judgment, injunction, or
decree to which the Borrower or such Subsidiary is a party or that would affect the ability of the Borrower or such Subsidiary
to operate any real property and no event has occurred and is continuing that, with the passage of time or the giving of notice
or both, would constitute noncompliance, breach of or default thereunder, except in each such case, such noncompliance, breaches
or defaults as would not reasonably be expected to, in the aggregate, have a Material Adverse Effect. There are no claims under
any Environmental Law pending or, to the best knowledge of the Borrower, threatened wherein an unfavorable decision, ruling or
finding would reasonably be expected to have a Material Adverse Effect. There are no facts, circumstances, conditions or occurrences
on any real property now or at any time owned, leased or operated by the Borrower or any of its Subsidiaries or on any Property
adjacent to any such real property, that are known by the Borrower or as to which the Borrower or any such Subsidiary has received
written notice, that could reasonably be expected: (i) to form the basis of an environmental claim against the Borrower or any
of its Subsidiaries or any real property of the Borrower or any of its Subsidiaries; or (ii) to cause such real property to be
subject to any restrictions on the ownership, occupancy, use or transferability of such real property under any Environmental Law,
except in each such case where such claims or restrictions individually or in the aggregate would not reasonably be expected to
have a Material Adverse Effect.


 


5.10         
Insurance. The properties of the Borrower and its Subsidiaries are insured pursuant to policies and other bonds which
are valid and in full force and effect and which provide adequate coverage from reputable and financially sound insurers in amounts
sufficient to insure the assets and risks of the Borrower and each such Subsidiary in accordance with prudent business practice
in the industry of such Borrower and Subsidiaries, except where the failure to do so could not reasonably be expected to result
in a Material Adverse Effect.


 


5.11         
Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other material tax returns and reports required
to be filed, and have paid all material Taxes, assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP or the non-payment
of which, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. To the Borrower’s
knowledge, there is no proposed tax assessment against the Borrower or any Subsidiary that would, if made, have a Material Adverse
Effect.


 


5.12         
ERISA Compliance.


 




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(a)               Each
Pension Plan of the Borrower and its Subsidiaries is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state laws. Neither the Borrower nor any Subsidiary has, or has at any time during the preceding
six years had, an obligation to contribute to a Multiemployer Plan. Each Pension Plan of the Borrower and its Subsidiaries that
is intended to be a qualified plan under Section 401(a) of the Code has received a favorable determination letter from the Internal
Revenue Service to the effect that the form of such Pension Plan is qualified under Section 401(a) of the Code and the trust related
thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Code,
or an application for such a letter is currently being processed by the Internal Revenue Service. To the best knowledge of the
Borrower, nothing has occurred that would prevent or cause the loss of such tax-qualified status.


 


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


 


(c)               
(i) No ERISA Event with respect to any Pension Plan of the Borrower or its Subsidiaries has occurred, and neither the Borrower
nor any Subsidiary is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an
ERISA Event with respect to any such Pension Plan except as could reasonably be expected individually or in the aggregate not to
exceed $50,000,000; (ii) the Borrower and each Subsidiary has met in all material respects all applicable requirements under the
Pension Funding Rules in respect of each Pension Plan of the Borrower and its Subsidiaries, and no waiver of the minimum funding
standards under the Pension Funding Rules has been applied for or obtained; (iii) as of the most recent valuation date for any
Pension Plan of the Borrower and its Subsidiaries, the funding target attainment percentage (as defined in Section 430(d)(2) of
the Code) is 60% or higher and neither the Borrower nor any Subsidiary knows of any facts or circumstances that could reasonably
be expected to cause the funding target attainment percentage for any such Pension Plan to drop below 60% as of the most recent
valuation date; (iv) neither the Borrower nor any Subsidiary has incurred any liability to the PBGC other than for the payment
of premiums, and there are no premium payments which have become due that are unpaid; (v) neither the Borrower nor any Subsidiary
has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension Plan of the
Borrower and its Subsidiaries has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance
has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to
terminate any such Pension Plan.


 


(d)              For the avoidance of doubt,
references to "Pension Plan" and "Multiemployer Plan" in this Section 5.12 refer only to Pension Plans
and Multiemployer Plans of the Borrower and its Subsidiaries and do not refer to the Pension Plans or Multiemployer Plans of
other ERISA Affiliates of the Borrower and its Subsidiaries.


 




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5.13         
Subsidiaries. As of the Closing Date, the Borrower has no Subsidiaries.


 


5.14         
Margin Regulations; Investment Company Act; Federal Power Act.


 


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


 


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


 


(c)              None of the Borrower or any of its Subsidiaries, or any Affiliate of any of them, is subject to regulation under the FPA
or under applicable state or other Laws respecting the rates or the financial or organizational regulation of electric utilities,
as a result of the creation or incurrence of the Obligations or entering into this Agreement or any other Loan Document or the
consummation of any transaction contemplated hereby or thereby.


 


5.15         
Disclosure. No report, financial statement, certificate or other information (other than projections and forward-looking
information and information of a general economic nature or industry nature) furnished by or on behalf of the Borrower to the Administrative
Agent or any Lender in writing in connection with the transactions contemplated hereby or delivered hereunder or under any other
Loan Document (in each case, as modified or supplemented by other information so furnished) contains any material misstatement
of fact or omits to state any material fact necessary to make the statements therein (when so furnished and taken as a whole),
in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to
projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time; it being recognized by the Administrative Agent and the Lenders that such projections as
to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections
may differ materially from the projected results.


 


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


 


5.17         
 Intellectual Property; Licenses, Etc. The Borrower and its Subsidiaries own, or possess the right to use, all of the
material trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual
property rights (collectively, "IP Rights") that are necessary for the operation of their respective businesses,
without any known conflict with the rights of any other Person, except for any IP Rights or any conflicts that, either


 




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individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.


 


5.18         
Solvency. The Borrower is not insolvent as defined in any applicable state or federal statute, nor will the Borrower
be rendered insolvent by the execution and delivery of this Agreement or any other Loan Document to the Administrative Agent and
the Lenders or the performance of its obligations hereunder or thereunder.


 


5.19         
Employment Matters. The Borrower is in compliance with all employment agreements, employment contracts, collective bargaining
agreements and other agreements between the Borrower and its employees (collectively, "Labor Contracts") and all
applicable Federal, state and local labor and employment Laws including those related to equal employment opportunity and affirmative
action, labor relations, minimum wage, overtime, child labor, medical insurance continuation, worker adjustment and retraining
notices, immigration controls and worker and unemployment compensation, where the failure to comply would constitute a Material
Adverse Effect. There are no outstanding grievances, arbitration awards or appeals therefrom arising out of the Labor Contracts
or current or threatened strikes, picketing, handbilling or other work stoppages or slowdowns at facilities of the Borrower which
in any case would constitute a Material Adverse Effect.


 


5.20         
OFAC. Neither the Borrower, nor any of its Subsidiaries, nor, to the knowledge of the Borrower and its Subsidiaries,
any director, officer, employee, agent, affiliate or representative thereof, is an individual or entity that is, or is owned or
controlled by any individual or entity that is (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s
List of Specially Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List,
or any similar list enforced by any other relevant sanctions authority or (iii) located, organized or resident in a Designated
Jurisdiction.


 


5.21         
Anti-Corruption Laws. The Borrower and its Subsidiaries have conducted their businesses in compliance with the United
States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions
and have instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.


 


ARTICLE
VI.            AFFIRMATIVE COVENANTS


 


So long as any Lender
shall have any Commitment hereunder, any Loan or other Obligation relating solely to the payment of principal or interest on any
Loan or fees payable hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (unless such
Letters of Credit have been Cash Collateralized), the Borrower shall, and shall (except in the case of the covenants set forth
in Sections 6.01, 6.02, and 6.03) cause each Subsidiary to:


 


6.01         
Financial Statements. Deliver to the Administrative Agent and each Lender:


 


(a)              as soon as available, but in any event within 90 days after the end of each fiscal year of the Borrower, a condensed consolidated
balance sheet of the Borrower and its


 




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Subsidiaries as at the
end of such fiscal year, and the related condensed consolidated statements of income or operations, changes in shareholders’
equity, and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail and prepared in accordance with GAAP, such condensed consolidated statements to be audited and accompanied
by a report and opinion of Ernst & Young LLP or another independent certified public accountant of nationally recognized standing
selected by the Borrower in its sole discretion, which report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any "going concern" or like material qualification or exception or any
material qualification or exception as to the scope of such audit; and


 


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


 


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


 


6.02         
Certificates; Other Information. Deliver to the Administrative Agent and each Lender:


 


(a)              concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower (which delivery may, unless the Administrative Agent, or a Lender
requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic
counterpart thereof for all purposes);


 


(b)              promptly after the same are filed with the SEC, copies of all proxies which the Borrower may file with the SEC under Section
14(a) of the Exchange Act and copies of all annual, regular, periodic and special reports and registration statements which the
Borrower may file with the SEC under Section 13 or 15(d) of the Exchange Act, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto; and


 


(c)               promptly,
such additional information regarding the business, financial or corporate affairs of the Borrower or any Subsidiary, or compliance
with the terms of the Loan


 




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Documents, as the Administrative
Agent or any Lender may from time to time reasonably request.


 


Documents required
to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(b) or (c) (to the extent any such
documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Borrower posts (or electronically delivers) such documents, or provides
a link thereto on the Borrower’s website on the Internet at one or more of the website addresses listed on Schedule 10.02;
(ii) on which such documents are posted to the SEC’s website at www.sec.gov or (iii) on which such documents are posted on
the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have
access (whether a commercial, third-party website or whether sponsored by the Administrative Agent).


 


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


 


6.03         
Notices. Promptly, after a Responsible Officer of the Borrower has knowledge thereof, notify the Administrative Agent
and each Lender:


 


(a)             of
the occurrence of any Default;


 


(b)             of any (i) breach or non-performance of, or any default under, a Contractual Obligation of the Borrower or any Subsidiary;
(ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or
any Subsidiary, including pursuant to any applicable


 




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Environmental Laws, in
each case under any of the foregoing clauses (i), (ii) and (iii) where such event could reasonably be expected to have a Material
Adverse Effect;


 


(c)              of
the occurrence of any ERISA Event;


 


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


 


(e)              of
any amendment to the Organization Documents of the Borrower filed by the Borrower in the applicable office in the jurisdiction
where it is organized; and


 


(f)             Any Rating change.


 


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


 


6.04         
Payment of Taxes and Claims. Pay and discharge prior to the date on which penalties attach thereto, (a) all material
tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, and (b) all lawful claims
which, if unpaid, would by law become a Lien upon its property not permitted hereunder, in each case unless the same are being
contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being
maintained by the Borrower or such Subsidiary or, in the case of clause (b), the failure to pay or discharge could not reasonably
be expected to result in a Material Adverse Effect.


 


6.05         
Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.03 or 7.04;
(b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation
of which could reasonably be expected to have a Material Adverse Effect.


 


6.06         
Maintenance of Properties. (a) Maintain, preserve and protect all of its properties and equipment necessary in the operation
of its business in good working order and condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto
and renewals and replacements thereof, except in the case of clauses (a) and (b) where the failure to do so could not reasonably
be expected to have a Material Adverse Effect (it being understood that this covenant relates to only to the good working order
and repair of such property and equipment and shall not be construed as a covenant not dispose of any such property or equipment
by sale, lease, transfer or otherwise or to discontinue operation thereof to the extent not prohibited under this Agreement).


 




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6.07         
Maintenance of Insurance. Maintain insurance coverage by such insurers and in such forms and amounts and against such
risks as are generally consistent with the insurance coverage maintained by the Borrower and its Subsidiaries at the date hereof,
except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect.


 


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


 


6.09         
Books and Records. Maintain proper books of record and account, in which full, true and correct entries in conformity
with GAAP consistently applied shall be made in all material respects of all financial transactions and matters involving the assets
and business of the Borrower or such Subsidiary, as the case may be.


 


6.10         
Inspection Rights. Permit representatives and independent contractors of the Administrative Agent and each Lender to
visit and inspect (but not to conduct invasive sampling of environmental media or building materials) any of its material properties,
and to discuss its affairs, finances and accounts with its executive officers and independent public accountants (provided that
the Borrower shall be permitted to attend any such discussions with such accountants) and, if a Default exists, to examine its
books of records and account and make copies thereof or abstracts therefrom, all at such reasonable times during normal business
hours and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided, however,
that unless an Event of Default has occurred and is continuing, the Borrower shall not be required to permit more than one such
visit, inspection or examination during any calendar year. All costs and expenses incurred by the Administrative Agent or any Lender
in connection with any of the foregoing shall be paid by the Administrative Agent or such Lender, as the case may be, unless an
Event of Default shall have occurred and be continuing at the time such costs and/or expenses are incurred, in which case all such
costs and expenses shall be paid by the Borrower. Subject to the proviso above, in the event any Lender desires to visit and inspect
the Borrower or any of its Subsidiaries, such Lender shall make a reasonable effort to conduct such visit and inspection contemporaneously
with any visit and inspection to be performed by the Administrative Agent or another Lender. Notwithstanding anything to the contrary
in this Section 6.10, neither the Borrower nor any of its Subsidiaries will be required to disclose, permit the inspection,
examination or making copies or abstracts of, or discussion of, any document, information or other matter that (a) constitutes
non-financial trade secrets or non-financial proprietary information, (b) in respect of which disclosure to the Administrative
Agent (or its representatives) or any Lender (or its representatives) is prohibited by Law or (c) is subject to attorney-client
or similar privilege or constitutes attorney work product.


 


6.11         
Use of Proceeds. Use the proceeds of the Credit Extensions for general corporate purposes, including refinancing existing
indebtedness, not in contravention of any Law or of any Loan Document.


 


6.12         
Senior Debt. Ensure that (a) the claims of the Administrative Agent and the Lenders in respect of the Obligations of
the Borrower will not be subordinate to, and will in all


 




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respects rank at least
pari passu with or senior to, the claims of every unsecured creditor of the Borrower, and (b) any Indebtedness of the Borrower
that is subordinated in any manner to the claims of any other senior creditor of the Borrower will be subordinated in like manner
to such claims of the Administrative Agent and the Lenders.


 


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


 


ARTICLE
VII.                  
NEGATIVE COVENANTS


 


So long as any Lender
shall have any Commitment hereunder, any Loan or other Obligation relating solely to the payment of principal or interest on any
Loan or fees payable hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding (unless such
Letters of Credit have been Cash Collateralized), the Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:


 


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


 


(a)              Liens pursuant to any Loan Document;


 


(b)             Liens
existing on the date hereof and listed on Schedule 7.01 and any renewals, refinancings or extensions thereof, provided
that the principal amount secured or benefited thereby is not increased;


 


(c)              Liens
for Taxes, assessments or charges or levies on property not yet delinquent or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained in accordance with GAAP;


 


(d)             Liens imposed by law, such as carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s
or other like Liens arising in the ordinary course of business which do not secure obligations overdue for a period of more than
60 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with
respect thereto are maintained;


 


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


 


(f)              deposits
to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal
bonds, indemnity or performance bonds and other obligations of a like nature incurred in the ordinary course of business;


 


(g)             easements,
rights-of-way, zoning, restrictions or other similar encumbrances or imperfections in title and obligations contained in similar
instruments and prior rights of other


 




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Persons which, do not
materially interfere with the ordinary conduct of the business of the Borrower and its Subsidiaries or could not reasonably be
expected to have a Material Adverse Effect;


 


(h)             Liens
securing judgments, decrees or attachments not constituting an Event of Default under Section 8.01(i);


 


(i)               Liens
on property of the Borrower securing the DP&L First Mortgage Bonds and, subject to the terms of Section 7.07, any amendment,
modification, refinancing, replacement or renewal thereof; provided that upon any such amendment, modification, refinancing,
replacement or renewal thereof, the aggregate principal amount of Indebtedness secured by Liens permitted to be incurred pursuant
to this clause (i) shall not exceed the principal amount of the Indebtedness secured by such bonds as of the date hereof
by an amount in excess of $20,000,000;


 


(j)               Liens on property of the Borrower in connection with collateralized pollution control bonds;


 


(k)             Liens on property of the Borrower and its Subsidiaries in connection with (i) any construction project or generating plant
as security for any Indebtedness incurred for the purpose of financing all or part of such construction project or generating plant,
and in each case, Liens and charges incidental thereto; provided that the aggregate amount of Indebtedness secured by Liens
permitted pursuant to this clause (k)(i) shall not exceed $50,000,000 at any time outstanding and (ii) security for
any Indebtedness incurred for the purpose of financing capital improvements for any generating plant owned by the Borrower or its
Subsidiaries which the Borrower or such Subsidiary reasonably deems as necessary or advisable in order to comply with Laws; provided
that the aggregate amount of Indebtedness secured by Liens pursuant to clause (k)(i) and this clause (k)(ii) shall
not exceed $150,000,000 at any time outstanding;


 


(l)             banker’s
liens and rights of setoff arising by operation of law and contractual rights of setoff;


 


(m)           leases
or subleases granted in the ordinary course of business to others not interfering in any material respect with the business of
the Borrower or its Subsidiaries and any interest or title of a lessee under any lease not in violation of this Agreement;


 


(n)            purported
Liens evidenced by the filing of precautionary Uniform Commercial Code financing statements relating solely to operating leases
of personal property entered into in the ordinary course of business;


 


(o)             the right reserved to, or vested in, any municipality or public authority by the terms of any right, power, franchise, grant,
license or permit, or any provision of law, to purchase or capture or designate a purchaser of any property;


 


(p)             Liens with respect to cash collateral deposited by the Borrower and its Subsidiaries with counterparties in the ordinary
course of the Borrower and its Subsidiaries’ purchase and sale of energy, power, interest rate hedges, coal and other commodities;


 




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(q)             Liens
arising from the rights of lessors under leases (including financing statements regarding property subject to such lease) permitted
under this Agreement; provided that such Liens are only in respect of property subject to, and secure only, the respective
lease (and any other lease with the same or affiliated lessor);


 


(r)              any
(i) Lien existing on any property at the time such property is acquired by the Borrower or any of its Subsidiaries or on
any property of any Person at the time such Person becomes, or is merged into, a Subsidiary of the Borrower; provided that
(A) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming, or being
merged into, such Subsidiary, as the case may be, (B) such Lien shall not attach or apply to any other property or assets
of the Borrower or any of its Subsidiaries, and (C) such Lien shall secure only those obligations that it secures on the
date of such acquisition or the date such Person becomes, or is merged into, such Subsidiary, as the case may be, and any extension,
renewal, refunding or refinancing thereof, so long as the aggregate principal amount so extended, renewed, refunded or refinanced
is not increased, and (ii) Lien securing Indebtedness in respect of purchase money obligations for the acquisition, lease,
construction or improvement of fixed assets or Capitalized Lease Obligations, provided that (A) such Lien only
attaches to such fixed assets being acquired, leased, constructed or improved and (B) the Indebtedness secured by such Lien
does not exceed the cost or fair market value, whichever is lower, of the fixed assets being acquired, leased, constructed or
improved on the date of acquisition, lease, construction or improvement; provided that the aggregate principal amount of
Indebtedness at any time outstanding secured by a Lien described in this subsection (r) shall not exceed an amount equal
to 5% of the Consolidated Tangible Assets at such time;


 


(s)              Liens incurred in connection with an obligation to cash collateralize letters of credit or swing line loans;


 


(t)               Liens,
in addition to those listed above, securing Indebtedness and other obligations in an aggregate amount at any time not exceeding
$25,000,000; and


 


(u)             Liens,
in addition to those listed above, provided that any such lien secures the Indebtedness under this Agreement on an equal and ratable
basis.


 


7.02         
Investments. Make any Investments, except:


 


(a)             
Investments held by the Borrower or such Subsidiary in the form of cash, cash equivalents or other Short Term Investments;


 


(b)             loans and advances to officers, directors and employees of the Borrower or any of its Subsidiaries in an aggregate amount
not to exceed $10,000,000 at any time outstanding, for travel, entertainment, relocation, payroll, office equipment, tuition and
analogous ordinary business purposes;


 


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


 




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(d)             Permitted Acquisitions in an amount not to exceed $150,000,000 in the aggregate during the term of this Agreement;


 


(e)              Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the
grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof
from financially troubled account debtors and Investments in account debtors received in connection with a proceeding under any
Debtor Relief Laws in settlement of the obligations of account debtors;


 


(f)              Promissory
notes, earn-outs, other contingent payment obligations and other non-cash consideration received by the Borrower or any of its
Subsidiaries as partial payment of the total consideration of any Disposition made in accordance with Section 7.04(f);


 


(g)             Guarantees
of the Borrower or any Subsidiary in respect of (i) Indebtedness of the Borrower or any Subsidiary permitted under this Section
7.02 and (ii) ordinary course of business obligations of the Borrower or any Subsidiary that do not constitute Indebtedness;


 


(h)             Investments
comprised of the purchase of receivables from other energy marketers as required from time to time by one or more applicable Governmental
Authorities;


 


(i)               Investments existing on the date hereof and set forth on Schedule 7.02;


 


(j)               Investments
in investment-grade issuers that are held by the Borrower or any Subsidiary not longer than eighteen months;


 


(k)             other Investments not otherwise permitted hereunder in an amount not to exceed $25,000,000, in the aggregate at any time
outstanding;


 


(l)              
Guarantees, in addition to those listed above, provided that, this Agreement is also Guaranteed on an equal and ratable
basis;


 


(m)             Investments which may be necessary or advisable to complete the Separation Transactions;


 


(n)             so long as no Default shall have occurred and be continuing, the Borrower may make intercompany loans to any of its Affiliates
(other than a direct or indirect Subsidiary), if at the time of such action (and taking into account such action), either (i) (A)
the ratio of Consolidated Total Debt to Consolidated Total Capitalization of Parent is not greater than 0.67 to 1.00 and (B) the
ratio of Consolidated EBITDA to Consolidated Interest Charges of Parent is not less than 2.5 to 1.00, or (ii) Parent’s senior
unsecured long-term debt at the time of such action shall be at least Investment Grade; and


 


(o)            any Investment made by a captive
insurance company Subsidiary that is a legal investment for an insurance company under the laws of the jurisdiction in which such
captive insurer is formed and made in the ordinary course of business.


 


7.03         
Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into another Person, or Dispose of (whether in
one transaction or in a series of transactions) all or


 




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substantially all of
its assets (whether now owned or hereafter acquired) to or in favor of any Person, except that:


 


(a)              any Subsidiary may merge, dissolve, liquidate or consolidate with or into (i) the Borrower, provided that the Borrower
shall be the continuing or surviving Person, or (ii) any one or more other Subsidiaries;


 


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


 


(c)              any Subsidiary may merge with any Person (other than the Borrower or a Subsidiary) in a transaction permitted by Section
7.02(d); provided that (i) the Subsidiary shall be the continuing or surviving Person and (ii) immediately before and
after such merger there shall not exist any Default or Event of Default;


 


(d)             the Borrower and any Subsidiary may liquidate or dissolve (i) Immaterial Subsidiaries and (ii) Persons whose assets are
sold in a Disposition permitted by Section 7.04;


 


(e)              the Borrower and any Subsidiary may conduct any such transactions which may be necessary or advisable to complete the Separation
Transactions;


 


(f)              the Borrower may merge with any Person (other than a Subsidiary) in a transaction permitted by Section 7.02(d); provided
that (i) the Borrower shall be the continuing or surviving Person and (ii) immediately before and after such merger there shall
not exist any Default or Event of Default; and


 


(g)            the Borrower
and any Subsidiary may make dispositions of all or substantially all of the assets of a Subsidiary that do not constitute all or
substantially all of the assets of the Borrower and its Subsidiaries taken as a whole in a transaction permitted by Section
7.04.


 


7.04         
Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except:


 


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


 


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


 


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


 


(d)             Dispositions
of property by any Subsidiary to the Borrower or to a wholly-owned Subsidiary;


 




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(e)              Dispositions permitted by Sections 7.01, 7.02 and 7.03;


 


(f)              Dispositions of property having a fair market value of less than $5,000,000 individually;


 


(g)             Dispositions by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.04 so long as (A) the
aggregate amount (based upon the fair market value of the assets) of all property sold or otherwise disposed pursuant to all such
Dispositions on and after the Closing Date at the time of and after giving effect to any such Disposition does not constitute a
Substantial Portion of the property of the Borrower and its Subsidiaries and (B) at least 75% of the total consideration received
by the Borrower or any of its Subsidiaries, as applicable, for such Disposition or series of Dispositions consists of cash or cash
equivalents;


 


(h)             Dispositions
necessary or advisable to complete the Separation Transactions; and


 


(i)               Dispositions of interests held by the Borrower and its Subsidiaries in electricity generating units to tenants-in-common
(or Affiliates thereof) in exchange for reasonably equivalent tenants-in-common interests in other electricity generating units.


 


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


 


7.05         
Change in Nature of Business. Engage in any business if, as a result, the general nature of the business, taken on a
consolidated basis, that would then be engaged in by the Borrower and its Subsidiaries would be substantially changed from the
general nature of the business engaged in by the Borrower and its Subsidiaries on the Closing Date; provided that the foregoing
restriction shall not prohibit actions necessary or advisable to complete the Separation Transactions.


 


7.06         
Transactions with Affiliates. Enter into any transaction of any kind with any Affiliate of the Borrower, whether or
not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Borrower or such
Subsidiary as would be obtainable by the Borrower or such Subsidiary at the time in a comparable arm’s length transaction
with a Person other than an Affiliate; provided that the foregoing restriction shall not apply to (a) transactions between
or among the Borrower and any of its Subsidiaries or between and among any Subsidiaries, (b) sales of goods by the Borrower or
any of its Subsidiaries to an Affiliate for use or distribution outside the United States that in the good faith judgment of the
Borrower complies with any applicable legal requirements of the Code, (c) agreements and transactions with and payments to officers,
directors and shareholders that are either (i) entered into in the ordinary course of business and not prohibited by any of the
provisions of this Agreement or (ii) entered into outside the ordinary course of business, approved by the directors or shareholders
of the Borrower, and not prohibited by any of the provisions of this Agreement, (d) the issuances of securities or other payments,
awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock option and stock
ownership plans or similar employee benefit plans and other compensation arrangements with respect to the procurement of services
with their respective officers and employees, and any employment agreements entered into by Borrower or any Subsidiary, in each
case approved by the Borrower


 




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or any Subsidiary in
good faith, (e) actions necessary or advisable to complete the Separation Transactions, (f) that certain Services Agreement, dated
December 23, 2013 (effective January 1, 2014), among AES US Services, LLC, the DPL, and certain affiliates thereof, for the provision
of various services to the Borrower including accounting, legal, human resources, information technology and similar services,
and any amendment thereto, (g) any agreements between the Borrower and an Affiliate necessary or advisable in assisting the Borrower’s
operations as a result of the Separation Transactions, and any amendments thereto or (h) leases of real property, easements and
licenses granted to Affiliates at the site of the Tait Generating Station located in City of Moraine, State of Ohio.


 


7.07         
Burdensome Agreements. Except with respect to (i) the US Bank Credit Facility, (ii) the Tax Exempt Agreements, (iii)
the DP&L First Mortgage Bonds and any pollution control bonds, each as in effect on the Closing Date (and, in each case, any
amendment, modification, refinancing, replacement or renewal thereof, so long as such restriction or limitation is not more restrictive
to the Borrower and its Subsidiaries than any such restriction or limitation in effect on the Closing Date) and (iv) the Separation
Transactions, enter into any Contractual Obligation that limits the ability of any Subsidiary to make Restricted Payments to the
Borrower or to otherwise transfer property to the Borrower, which could reasonably be expected to result in a Material Adverse
Effect.


 


7.08         
Swap Agreements. Enter into any Swap Contract other than any Swap Contract entered into by such Person pursuant to which
such Person has hedged its reasonably estimated interest rate, foreign currency or power and other commodity exposure, and not
for speculative purposes.


 


7.09         
Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately,
incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit
to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.


 


7.10         
Accounting Changes. Make any change in its fiscal year.


 


7.11         
Financial Covenants. (a) Until the date of completion of the Separation Transactions, permit the ratio of (i) Consolidated
Total Debt to Consolidated Total Capitalization at any time to be greater than 0.65 to 1.00 and (ii) Consolidated EBITDA to Consolidated
Interest Charges to be less than 2.50 to 1.00.


 


(b)On and after
the date of the completion of the Separation Transactions, permit the ratio of (i) Consolidated Total Debt to Consolidated Total
Capitalization at any time to be greater than 0.75 to 1.00 and (ii) Consolidated EBITDA to Consolidated Interest Charges to be
less than 2.50 to 1.00; provided that (x) if, between January 1, 2017 and December 31, 2017, long term indebtedness of the
Borrower, as determined by PUCO, is less than or equal to $750,000,000, compliance with the ratio in clause (i) of this subsection
(b) shall be suspended and (y) if the Borrower has a Rating of BBB-/Baa3/BBB- or higher with a stable outlook from at least one
of Fitch, S&P or Moody’s, then the ratio in clause (i) of the subsection (b) shall be suspended for so
long as the Borrower maintains such Rating.


 






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7.12         
Tax Exempt Agreements. Permit the terms and conditions of the Tax Exempt Agreements to be more restrictive to the Borrower
and its Subsidiaries than the terms and conditions of this Agreement, unless otherwise agreed by the Arrangers in their reasonable
discretion.


 


ARTICLE
VIII.               
EVENTS OF DEFAULT AND REMEDIES


 


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


 


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


 


(b)             Specific Covenants. The Borrower fails to perform or observe any term, covenant or agreement contained in any of
Section 6.01, 6.03(a) or (b), 6.05 (solely with respect to the Borrower), 6.11 or 6.12 or Article
VII; or


 


(c)              Additional Covenants. The Borrower fails to perform or observe any term, covenant or agreement contained in any of
Section 6.02 or 6.10 and such failure continues for fifteen (15) days; or


 


(d)             Other
Defaults. The Borrower fails to perform or observe any other covenant or agreement (not specified in subsection (a), (b) or
(c) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days after
notice thereof from the Administrative Agent to the Borrower; or


 


(e)              Representations
and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the
Borrower herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect
or misleading in any material respect (except that if a qualifier relating to materiality, Material Adverse Effect or a similar
concept applies, such representation or warranty shall be required to be true and correct in all respects) when made or deemed
made; or


 


(f)              Cross-Default.
(i) The Borrower or any Subsidiary (A) defaults in any payment (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise and after applicable notices have been given and grace periods have expired) in respect of any Indebtedness
or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate outstanding principal
amount (including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than $50,000,000,
or (B) defaults in the performance of any other agreement or condition relating to any such Indebtedness or Guarantee or contained
in any instrument or agreement evidencing, securing or relating thereto (after all applicable notices have been given and grace
periods have expired), or any other event occurs, the effect of which default or other event is to cause, or to permit the holder
or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with


 




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the giving of notice
if required and after all applicable grace periods have expired, such Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness
to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded;
or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any
event of default under such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as defined in such
Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower or any Subsidiary
is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower or such Subsidiary as
a result thereof is greater than $50,000,000; or


 


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


 


(h)             Inability to Pay Debts. The Borrower or any Subsidiary becomes unable or admits in writing its inability to pay its
debts as they become due; or


 


(i)               Judgments.
There is entered against the Borrower or any Subsidiary (i) one or more final judgments or orders for the payment of money in
an aggregate amount (as to all such judgments or orders) exceeding $50,000,000 (to the extent not covered by third-party insurance
as to which the insurer does not dispute coverage), and (A) enforcement proceedings are commenced by any creditor upon such judgment
or order, or (B) there is a period of 30 consecutive days during which a stay of enforcement of such judgment, by reason of a
pending appeal or otherwise, is not in effect; or


 


(j)               ERISA.
(i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted in liability of the Borrower
under Title IV of ERISA to the Pension Plan, a Multiemployer Plan or the PBGC in an aggregate amount in excess of $50,000,000,
and the Borrower or any ERISA Affiliate fails to make any payment in satisfaction of such liability after the expiration of any
applicable grace period, in accordance with applicable law or any agreement entered into in respect thereof, (ii) the Borrower
or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of
$50,000,000 or (iii) an ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which could reasonably be expected
to result in a Material Adverse Effect; or


 




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


 


(l)               Change
of Control. There occurs any Change of Control, other than a Change of Control resulting from the pledge (but not the foreclosure,
any transfer-in-lieu of foreclosure or any other transfer except as collateral security) by AES or a subsidiary of AES of any
equity interest in the Parent or the Borrower to secure its corporate obligations.


 


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


 


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


 


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


 


(c)              require that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof);
and


 


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


 


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


 


8.03         
Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically
become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth
in the proviso to Section 8.02), any amounts received on account of the Obligations shall, subject to the provisions of
Sections 2.15 and 2.16, be applied by the Administrative Agent in the following order:


 




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


 


Second, to payment
of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter
of Credit Fees) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective
Lenders and the L/C Issuers to the extent required to be reimbursed hereunder and amounts payable under Article III), ratably
among them in proportion to the respective amounts described in this clause Second payable to them;


 


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


 


Fourth, to payment
of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings, ratably among the Lenders and
the L/C Issuers in proportion to the respective amounts described in this clause Fourth held by them;


 


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


 


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


 


Subject to Sections
2.03(c) and 2.15, amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause
Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit
as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied
to the other Obligations, if any, in the order set forth above.


 




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ARTICLE
IX.               ADMINISTRATIVE AGENT


 


9.01         
Appointment and Authority. Each of the Lenders and the L/C Issuers hereby irrevocably appoints PNC Bank, National Association
to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are
solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and the Borrower shall not have rights as
a third party beneficiary of any of such provisions, except as provided in Section 9.06. It is understood and agreed that
the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the
Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine
of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative
relationship between contracting parties.


 


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


 


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


 


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


 


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


 


(c)     shall
not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for
the failure to disclose,


 




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any information
relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative
Agent or any of its Affiliates in any capacity.


 


The Administrative
Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good
faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) and (ii) in the absence
of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Administrative Agent by the Borrower, a Lender or an L/C Issuer.


 


The Administrative
Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv)
the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument
or document, except as it relates to enforceability against the Administrative Agent or (v) the satisfaction of any condition set
forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.


 


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


 


9.05         
Delegation of Duties. The Administrative Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through
their respective Related Parties. The exculpatory provisions of this Article


 




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shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities
in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that
a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross
negligence or willful misconduct in the selection of such sub-agents.


 


9.06         
Resignation of Administrative Agent.


 


(a)              The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrower.
Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the prior written consent of the
Borrower (so long as no Event of Default has occurred and is continuing), to appoint a successor, which shall be a commercial bank
organized and licensed under the laws of the United States. If no such successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may on behalf of the Lenders and the L/C Issuers, with the prior written consent of the
Borrower (so long as no Event of Default has occurred and is continuing), appoint a successor Administrative Agent meeting the
qualifications set forth above; provided that if the Administrative Agent shall notify the Borrower and the Lenders that
no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with
such notice and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents (except that in the case of any collateral security held by the Administrative Agent on behalf of the
Lenders or the L/C Issuers under any of the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (2) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly,
until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested
with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section), except for its obligations under Section 10.07. The fees payable by the Borrower
to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the retiring Administrative Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring 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.


 


(b)             Any resignation
by PNC Bank, National Association as Administrative Agent pursuant to this Section shall also constitute its resignation as an
L/C Issuer and Swing Line


 




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Lender. Upon the acceptance
of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring L/C Issuer
and Swing Line Lender shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents, and
(c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the
time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations
of the retiring L/C Issuer with respect to such Letters of Credit.


 


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


 


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


 


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


 


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


 


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


 




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


 


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


 


ARTICLE
X. MISCELLANEOUS


 


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


 


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


 


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


 


(c)              reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iii) of the second
proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby; provided, however, that only the consent of the Required
Lenders shall be necessary (i) to amend the definition of "Default Rate" or to waive any obligation of the Borrower
to pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend or waive compliance with any covenant hereunder
(or any defined term used therein) even if the effect of such amendment or waiver would be to reduce the rate of interest on any
Loan or L/C Borrowing or to reduce any fee payable hereunder;


 


(d)             change Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written
consent of each Lender; or


 


(e)              change
any provision of this Section or the definition of "Required Lenders" or any other provision hereof specifying the number
or percentage of Lenders required to amend,


 




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waive or otherwise modify
any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender;


 


and, provided
further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the applicable L/C Issuer in addition
to the Lenders required above, affect the rights or duties of any L/C Issuer under this Agreement or any Issuer Document relating
to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed
by the Administrative Agent and the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of
the Administrative Agent and the Swing Line Lender under this Agreement or any other Loan Document; (iii) the Fee Letters may be
amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto; and (iv) the Administrative
Agent may, with the written consent of the Borrower, amend, modify or supplement this Agreement to cure any obvious error or omission.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each
affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the
Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment
or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more
adversely than other affected Lenders shall require the consent of such Defaulting Lender.


 


10.02     
Notices; Effectiveness; Electronic Communication.  


 


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


 


(i)                
if to the Borrower, the Administrative Agent or PNC Bank, National Association or the Swing Line Lender, in its capacity
as a Lender or an L/C Issuer, to the address, telecopier number, electronic mail address or telephone number specified for such
Person on Schedule 10.02; and


 


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


 


Notices and other communications
sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received;
notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during
normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day
for the recipient). Notices and other


 




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communications delivered
through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection
(b).


 


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


 


Unless the Administrative
Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by the "return receipt requested" function,
as available, return e-mail or other written acknowledgement); provided that if such notice 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 for the recipient, and (ii) notices or communications posted to an Internet or intranet
website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing
clause (i) of notification that such notice or communication is available and identifying the website address therefor.


 


(c)             The
Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE AGENT PARTIES (AS DEFINED BELOW) DO
NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY
FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES
OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall
the Administrative Agent or any of its Related Parties (collectively, the "Agent Parties") have any liability
to the Borrower, any Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission
of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are
determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence
or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability
to the Borrower, any Lender, any L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages
(as opposed to direct or actual damages).


 




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


 


(e)             Reliance
by Administrative Agent, L/C Issuers and Lenders. The Administrative Agent, the L/C Issuers and the Lenders shall be
entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly
given by a Responsible Officer of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete
or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. All telephonic notices to and other telephonic communications with the Administrative
Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.


 


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


 


Notwithstanding anything
to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under
the other Loan Documents against the Borrower shall be vested exclusively in, and all actions and proceedings at law in connection
with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section
8.02 for the benefit of all the Lenders and the L/C Issuers; provided, however, that the foregoing shall not
prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely
in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any L/C Issuer or the Swing Line Lender
from exercising the rights and remedies that inure to its


 




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benefit (solely in its
capacity as an L/C Issuer or Swing Line Lender) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff
rights in accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs
of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to the Borrower under
any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent
hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative
Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding
proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies
available to it and as authorized by the Required Lenders.


 


10.04     
Expenses; Indemnity; Damage Waiver.


 


(a)            Costs
and Expenses. Subject to the provisions of the Fee Letters, the Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates (including the reasonable and documented fees, charges and disbursements
of a single counsel for the Administrative Agent), in connection with the syndication of the credit facilities provided for herein,
the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all reasonable out-of-pocket expenses incurred by any L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, any Lender or any L/C Issuer (including the fees, charges and disbursements of
a single counsel for the Administrative Agent, any Lender or any L/C Issuer, taken as a whole and, if reasonably required, one
local and/or regulatory counsel as necessary in each appropriate jurisdiction and, solely in the case of a conflict of interest,
one additional counsel to the affected Persons taken as a whole), in connection with the enforcement or protection of its rights
(A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.


 


(b)           Indemnification
by the Borrower. The Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender and each L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including
the fees, charges and disbursements of a single counsel for all such Indemnitees, taken as a whole), incurred by any Indemnitee
or asserted against any Indemnitee by any third party or by the Borrower arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby
or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of
the transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan


 




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Documents (including
in respect of any matters addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use
of the proceeds therefrom (including any refusal by the any L/C Issuer to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any
actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract,
tort or any other theory, whether brought by a third party or by the Borrower, and regardless of whether any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses, (A) (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought
by the Borrower against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other
Loan Document, if the Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court
of competent jurisdiction or (B) arise out of any claim, litigation, investigation or proceeding that does not involve an act or
omission by the Borrower or any of its affiliates and that is brought by an Indemnitee against any other Indemnitee. This subsection
10.04(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from
any non-Tax claim.


 


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


 


(d)           Waiver
of Consequential Damages, Etc. To the fullest extent permitted by applicable law, each party hereto and each Indemnitee shall
not assert, and hereby waives, any claim against each other party hereto and each Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with,
or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof; provided that this provision
shall not limit the Borrower’s indemnity obligations under Section 10.04(b) for claims asserted against any Indemnitee
by any third party. No Indemnitee referred to in subsection (b) above shall be


 




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liable for any damages
arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by
such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement
or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting
from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court
of competent jurisdiction.


 


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


 


(f)            Survival.
The agreements in this Section shall survive the resignation of the Administrative Agent and PNC Bank, National Association as
an L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.


 


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


 


10.06     
Successors and Assigns.  


 


(a)            Successors
and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender (other than
any Defaulting Lender) and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to
an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with
the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null
and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in


 




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subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuers
and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. The Administrative Agent in
its capacity as such may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written
consent of the Borrower, except in compliance with Section 9.06.


 


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


 


(i)            Minimum
Amounts.


 


(A)            
in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at
the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount
need be assigned; and


 


(B)             
in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which
for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the outstanding principal
balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption
with respect to such assignment is delivered to the Administrative Agent or, if "Trade Date" is specified in the Assignment
and Assumption, as of the Trade Date, shall not be less than $5,000,000 and, after giving effect to any assignment of Commitments,
the assignor shall not have a Commitment of less than $10,000,000 and the assignee shall have a Commitment of not less than $5,000,000
unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed).


 


(ii)           Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except
that this clause (ii) shall not apply to the rights in respect of the Swing Line Lender’s rights and obligations in respect
of Swing Line Loans.


 


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


 


(A)            
the consent of the Borrower (such consent not to be unreasonably withheld) shall be required unless (1) an Event of Default
has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender (other than any Defaulting
Lender), an Affiliate of a Lender (other than any


 




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Defaulting Lender)
or an Approved Fund; provided that the Borrower shall be deemed
to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within five
(5) Business Days after having received notice thereof;


 


(B)             
the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such
assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender;


 


(C)             
the consent of the L/C Issuers (such consent not to be unreasonably withheld or delayed) shall be required for any assignment
that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then
outstanding); and


 


(D)            
the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any
assignment.


 


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


 


(v)           No
Assignment to Certain Persons. No such assignment shall be made to (A) the Borrower or any of the Borrower’s Affiliates
or Subsidiaries, (B) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would
constitute any of the foregoing Persons described in this clause (B), or (C) a natural person.


 


(vi)          Certain
Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such
assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the
assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution
thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the prior written consent of the Borrower and the Administrative Agent, the applicable
pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee
and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting
Lender to the Administrative Agent, an L/C Issuer, or any Lender hereunder (and interest accrued thereon) and (y) acquire (and
fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance
with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any
Defaulting Lender hereunder shall become effective


 




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under applicable
Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting
Lender for all purposes of this Agreement until such compliance occurs.


 


Subject to acceptance
and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the
assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to
the benefits of Sections 3.01, 3.04, 3.05, and 10.04 and be bound by all of the provisions of this
Agreement with respect to facts and circumstances occurring prior to the effective date of such assignment and shall continue to
remain obligated under Sections 10.03, 10.07, 10.10, 10.12, 10.14, and 10.15 on and after
the effective of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties,
no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that
Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to
the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply
with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with subsection (d) of this Section.


 


(c)               
Register. The Administrative Agent, acting solely for this purpose as an agent of the Borrower (and such agency being
solely for tax purposes), shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal and interest
amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
any notice to the contrary. In addition, the Administrative Agent shall maintain on the Register information regarding the designation,
and revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable prior notice.


 


(d)              
Participations. Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative
Agent or the L/C Issuers or the Swing Line Lender, sell participations to any Person (other than a natural person, a Defaulting
Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a "Participant") in all
or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment
and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided
that (i) such Lender’s obligations under this


 




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Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this Agreement. Each Lender that sells a participation
shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name
and address of each Participant, and the principal amounts (and stated interest) of each Participant’s interest in the Loans
or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall
have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any
information relating to a Participant’s interest in any commitments, loans, letter of credit or its other obligations under
any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan,
letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.
The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose
name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding
any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall
have no responsibility for maintaining a Participant Register.


 


Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement
or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or
other modification described in subsections (a), (b) or (c) of the first proviso to Section 10.01 that
adversely affects such Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided such Participant
agrees to be subject to Section 2.13 as though it were a Lender.


 


(e)               
Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section
3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written
consent. A Participant shall not be entitled to the benefits of Section 3.01 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section
3.01(e) as though it were a Lender.


 


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


 




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its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.


 


(g)          
Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained
herein, if at any time PNC Bank, National Association assigns all of its Commitment and Loans pursuant to subsection (b) above,
PNC Bank, National Association may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or
(ii) upon 30 days’ notice to the Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer
or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation
of PNC Bank, National Association as L/C Issuer or Swing Line Lender, as the case may be. If PNC Bank, National Association resigns
as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuers hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including
the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant
to Section 2.03(c)). If PNC Bank, National Association resigns as Swing Line Lender, it shall retain all the rights of the
Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of
such resignation, including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in outstanding
Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a)
such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer
or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to PNC Bank, National
Association to effectively assume the obligations of PNC Bank, National Association with respect to such Letters of Credit.


 


10.07     
Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the L/C Issuers
agrees to maintain the confidentiality of the Information (as defined below), and use the Information only in connection with the
transactions contemplated hereby, except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, trustees, advisors and representatives (provided that the Person to
whom such disclosure is made needs to know such Information in connection with the transactions contemplated hereby and 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 and shall have agreed to be bound by the confidentiality and use provisions of
this Section to the same extent as if they were parties hereto and that the disclosing Person shall be responsible for any
breach of this provision), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including
any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable
laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto on a confidential basis, (e) in
connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to
this Agreement or any other Loan


 




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Document or the enforcement
of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same, but no less restrictive,
as those of this Section and to which the Borrower is a beneficiary thereof, 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 or any Eligible Assignee invited to be a Lender
pursuant to Section 2.14(c) or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction
relating to the Borrower and its obligations, (g) with the prior written consent of the Borrower or (h) to the extent such Information
(x) becomes publicly available other than as a result of a breach of this Section or other known confidentiality agreements or
obligations or (y) becomes available to the Administrative Agent, any Lender or any L/C Issuer on a non-confidential basis from
a source other than the Borrower that was not known to be bound by a confidentiality agreement or obligation; provided that
with respect to subsections (b), (c), (e) and (f), the Administrative Agent, such Lender or such L/C Issuer, as the case may be,
provides notification to the Borrower within a reasonable time prior to any disclosure or, if such prior notification is not reasonably
practicable, then as soon as reasonably practicable, in either case to the extent such notification is not prohibited by the regulatory
authority to which such disclosure is made, the legal process in which such disclosure is made and applicable law, as applicable.
For purposes of this Section, "Information" means all information received from or on behalf of the Borrower or any Subsidiary
relating to the Borrower or any Subsidiary or any of their respective businesses or Affiliates, other than any such information
that is available to the Administrative Agent, any Lender or any L/C Issuer on a non-confidential basis prior to disclosure by
the Borrower or any Subsidiary. 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.


 


Each of the Administrative
Agent, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning
the Borrower or a Subsidiary, as the case may be, (b) it has developed reasonable and customary compliance procedures regarding
the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable
Law, including United States Federal and state securities Laws. The obligations contained in this Section 10.07 shall survive
the expiration or termination of this Agreement.


 


10.08     
Right of Setoff.  If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer
and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted
by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, such L/C Issuer or any
such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or
not such Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such
obligations of the Borrower are owed to a branch or office of such Lender or such L/C Issuer different from the branch or office
holding such deposit or obligated on such indebtedness; provided, that in the event that any


 




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Defaulting Lender shall
exercise any right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further
application in accordance with the provisions of Section 2.16 and, pending such payment, shall be segregated by such Defaulting
Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting
Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to
such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender,
such L/C Issuer or their respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall
not affect the validity of such setoff and application.


 


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


 


10.10     
Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties
hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute
a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject
matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed
by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together,
bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy or other electronic imaging means shall be effective as delivery of an original executed counterpart of this Agreement.


 


10.11     
Survival of Representations and Warranties. All representations and warranties made hereunder and in any other
Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution
and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent
and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the


 




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time of any Credit Extension,
and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied
or any Letter of Credit shall remain outstanding.


 


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


 


10.13     
Replacement of Lenders. (i) If any Lender requests compensation under Section 3.04, (ii) if the
Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant
to Section 3.01 or 3.04, (iii) if any Lender gives a notice under Section 3.02, (iv) if any Lender is a Defaulting
Lender, (v) if any Lender is a Restricted Lender
(as defined below), or (vi) if the long term local issuer credit rating, or the equivalent
rating, by S&P of any Lender has dropped below BBB+ and the long term bank deposit credit rating, or the equivalent rating,
by Moody’s has dropped below Baa1; then, in the case of clauses (i) through (v), the Borrower, and in the case of clause
(vi), the Administrative Agent, may, at the sole
expense and effort of the Borrower or, in the case of clause (vi), the sole expense of the Borrower and the joint effort of the
Borrower and the Administrative Agent, upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section
10.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that
shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:


 


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


 


(b)            such
Lender shall have received payment of an amount equal to 100% of the outstanding principal of its Loans and L/C Advances, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees)
or the Borrower (in the case of all other amounts);


 


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


 




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(d)             in the case of any such assignment by a
Restricted Lender, the assignee must have approved in writing the substance of the amendment, waiver or consent which caused the
assignor to be a Restricted Lender; and


 


(e)              such
assignment does not conflict with applicable Laws.


 


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


 


For
the purposes of this Section 10.13, a "Restricted
Lender" means a Lender that fails to approve an amendment, waiver or consent requested by the Borrower pursuant to Section
10.01 that has received the written approval of not less than the Required Lenders but also requires the approval of such Lender.


 


10.14     
Governing Law; Jurisdiction; Etc.   


 


(a)            GOVERNING
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


(b)            SUBMISSION
TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION 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 BORROWER, THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.


 


(c)             WAIVER
OF VENUE. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR


 




    103 


     


    

 


RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.


 


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


 


10.15     
Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


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


 




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the fullest extent permitted
by law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent and any Arranger with
respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated
hereby.


 


10.17     
Electronic Execution of Assignments and Certain Other Documents. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption or in any amendment or other modification hereof
(including waivers and consents) shall be deemed to include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar
state laws based on the Uniform Electronic Transactions Act.


 


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


 


[Signature pages follow.]


 




    105 


     


    

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


 


THE DAYTON POWER AND LIGHT COMPANY


 


By: /s/ Jeffrey K. MacKay





Name: Jeffrey K. MacKay 


Title:    Treasurer


 






    
The Dayton Power and Light Company
 CREDIT AGREEMENT

Signature Page



     


    



PNC Bank, National association, a national banking association, as
Administrative Agent


 


By: /s/ Tracy J. Venable





Name: Tracy J. Venable 


 Title:    Senior Vice President




 




    
The Dayton Power and Light Company
 CREDIT AGREEMENT

Signature Page



     


    

 


PNC
BANK, NATIONAL ASSOciATION, as a Lender, the Swing Line Lender and an L/C Issuer


 


By: /s/ Tracy J. Venable





Name: Tracy J. Venable 


 Title:    Senior Vice President




 




    
The Dayton Power and Light Company
 CREDIT AGREEMENT

Signature Page



     


    

 


FIFTH THIRD BANK, as Syndication
Agent, an L/C Issuer and a Lender


 


By: /s/ Michael J. Schaltz, Jr.





Name: Michael J. Schaltz, Jr. 


 Title:    Vice President




 




    
The Dayton Power and Light Company
 CREDIT AGREEMENT

Signature Page



     


    

 


BANK OF AMERICA, N.A., as Documentation
Agent, an L/C Issuer and a Lender


 


By: /s/ Patrick Engel





Name: Patrick Engel 


 Title:    Director




 




    
The Dayton Power and Light Company
 CREDIT AGREEMENT

Signature Page



     


    

 


JPMORGAN CHASE BANK, N.A.,
as a Lender


 


By: /s/ Juan Javellana





Name: Juan Javellana





 Title:    Executive Director 




 




    
The Dayton Power and Light Company
 CREDIT AGREEMENT

Signature Page



     


    

 


BMO HARRIS BANK, NA, as a Lender


 


By: /s/ Betsy Phillips





Name: Betsy Phillips 


 Title:    Vice President




 




    
The Dayton Power and Light Company
 CREDIT AGREEMENT

Signature Page



     


    

 


ROYAL BANK OF CANADA, as a
Lender


 


By: /s/ Rahul D. Shah





Name: Rahul D. Shah 


 Title:    Authorized Signatory


 






    
The Dayton Power and Light Company
 CREDIT AGREEMENT

Signature Page