Exhibit 10.1


 


EXECUTION VERSION


 


 


 


 












 


Deal CUSIP Number: 23331UAG0 


Term Loan Facility CUSIP
Number: 23331UAH8 


Revolving Line of Credit
CUSIP Number: 23331UAJ4


 


CREDIT AGREEMENT


 


Dated as of July 31, 2015


 


among


 


DPL INC., 


as the Borrower


 


U.S. BANK NATIONAL
ASSOCIATION,

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


 


PNC BANK, NATIONAL
ASSOCIATION,  


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


 


 


 







U.S. BANK NATIONAL ASSOCIATION, 


PNC CAPITAL MARKETS LLC, 


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	29
	1.03	Accounting Terms	30
	1.04	Rounding	31
	1.05	Times of Day	31
	1.06	Letter of Credit Amounts	31
	ARTICLE II.	the COMMITMENTS and Credit Extensions	31
	2.01	Loans	31
	2.02	Borrowings, Conversions and Continuations of Loans	32
	2.03	Letters of Credit	33
	2.04	Swing Line Loans	42
	2.05	Prepayments	45
	2.06	Termination of Commitments	47
	2.07	Repayment of Loans	48
	2.08	Interest	48
	2.09	Fees	49
	2.10	Computation of Interest and Fees	49
	2.11	Evidence of Debt	49
	2.12	Payments Generally; Administrative Agent’s Clawback	50
	2.13	Sharing of Payments by Lenders	52
	2.14	Increase in Revolving Credit Commitments	52
	2.15	Cash Collateral	54
	2.16	Defaulting Lenders	55
	2.17	Additional Term Loans	57
	ARTICLE III.	TAXES, YIELD PROTECTION AND ILLEGALITY	60
	3.01	Taxes	60
	3.02	Illegality	64
	3.03	Inability to Determine Rates	64
	3.04	Increased Costs, Reserves on Eurodollar Rate Loans	65
	3.05	Compensation for Losses	67
	3.06	Mitigation Obligations; Replacement of Lenders	68
	3.07	Survival	68
	ARTICLE IV.	CONDITIONS PRECEDENT TO Credit Extensions	68
	4.01	Conditions of Initial Credit Extension	68
	4.02	Conditions to all Credit Extensions	71
	ARTICLE V.	    REPRESENTATIONS AND WARRANTIES	72
	5.01	Existence, Qualification and Power	72
	5.02	Authorization; No Contravention	73
	5.03	Governmental Authorization; Other Consents	73



 


 






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TABLE OF CONTENTS


  


	Section	 	Page



 






	5.04	Binding Effect	73
	5.05	Financial Statements; No Material Adverse Effect	73
	5.06	Litigation	74
	5.07	No Default	74
	5.08	Ownership of Property	74
	5.09	Environmental Compliance	75
	5.10	Insurance	75
	5.11	Taxes	76
	5.12	ERISA Compliance	76
	5.13	Subsidiaries	77
	5.14	Margin Regulations; Investment Company Act; Federal Power Act	77
	5.15	Disclosure	77
	5.16	Compliance with Laws	78
	5.17	 Intellectual Property; Licenses, Etc	78
	5.18	Solvency	78
	5.19	Employment Matters	78
	5.20	Casualty, Etc	78
	5.21	OFAC	78
	5.22	Anti-Corruption Laws	79
	ARTICLE VI.	AFFIRMATIVE COVENANTS	79
	6.01	Financial Statements	79
	6.02	Certificates; Other Information	80
	6.03	Notices	81
	6.04	Payment of Taxes and Claims	82
	6.05	Preservation of Existence, Etc	82
	6.06	Maintenance of Properties	82
	6.07	Maintenance of Insurance	82
	6.08	Compliance with Laws	83
	6.09	Books and Records	83
	6.10	Inspection Rights	83
	6.11	Use of Proceeds	84
	6.12	Senior Debt	84
	6.13	Maintenance of Collateral	84
	6.14	Further Assurances	84
	6.15	Anti-Corruption Laws	84
	6.16	Ohio Mortgage	85
	6.17	Zoning Report	86
	ARTICLE VII.	NEGATIVE COVENANTS	86
	7.01	Liens	86
	7.02	Investments	89
	7.03	Fundamental Changes	90
	7.04	Dispositions	91



 


 






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TABLE OF CONTENTS


  


	Section	 	Page



  


	7.05	Change in Nature of Business	92
	7.06	Transactions with Affiliates	92
	7.07	Burdensome Agreements	93
	7.08	Swap Agreements	93
	7.09	Use of Proceeds	93
	7.10	Accounting Changes	93
	7.11	Financial Covenants	93
	7.12	Tax Exempt Agreements	94
	7.13	Restricted Payments	94
	7.14	Indebtedness	95
	7.15	Amendments of Organization Documents	95
	7.16	Sanctions	95
	7.17	Anti-Corruption Laws	95
	ARTICLE VIII.	EVENTS OF DEFAULT AND REMEDIES	95
	8.01	Events of Default	95
	8.02	Remedies Upon Event of Default	98
	8.03	Application of Funds	98
	ARTICLE IX.	ADMINISTRATIVE AGENT	99
	9.01	Appointment and Authority	99
	9.02	Rights as a Lender	100
	9.03	Exculpatory Provisions	100
	9.04	Reliance by Administrative Agent	101
	9.05	Delegation of Duties	101
	9.06	Resignation of Administrative Agent	102
	9.07	Non-Reliance on Administrative Agent and Other Lenders	103
	9.08	No Other Duties, Etc	103
	9.09	Administrative Agent May File Proofs of Claim	103
	9.10	Collateral Matters.	104
	ARTICLE X.	  MISCELLANEOUS	105
	10.01	Amendments, Etc	105
	10.02	Notices; Effectiveness; Electronic Communication	106
	10.03	No Waiver; Cumulative Remedies; Enforcement	108
	10.04	Expenses; Indemnity; Damage Waiver	109
	10.05	Payments Set Aside	111
	10.06	Successors and Assigns	111
	10.07	Treatment of Certain Information; Confidentiality	116
	10.08	Right of Setoff	117
	10.09	Interest Rate Limitation	118
	10.10	Counterparts; Integration; Effectiveness	118
	10.11	Survival of Representations and Warranties	118
	10.12	Severability	118



 


 






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TABLE OF CONTENTS


  


	Section	 	Page



  


	10.13	Replacement of Lenders	119
	10.14	Governing Law; Jurisdiction; Etc	120
	10.15	Waiver of Jury Trial	121
	10.16	No Advisory or Fiduciary Responsibility	121
	10.17	Electronic Execution of Assignments and Certain Other Documents	122
	10.18	USA PATRIOT Act	122
	 	 	 


	SIGNATURES	 	S-1


 

 



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	SCHEDULES
	 	 
	1.01	Existing Letters of Credit
	2.01	Commitments and Applicable Percentages
	2.07	Scheduled Term Loan Installment
	5.08	Existing Liens
	5.13	List of Subsidiaries
	7.02	Existing Investments
	10.02	Administrative Agent’s Office; Certain Addresses for Notices
	 	 
	EXHIBITS      Form of
	 	 
	A-1	Term Loan Notice
	A-2	Revolving Credit Loan Notice
	A-3	Swing Line Loan Notice
	B-1	Term Loan Note
	B-2	Revolving Credit 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



 

 


 


 



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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 DPL Inc.,
an Ohio corporation (the “Borrower”), each lender from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), U.S.
Bank National Association, as Administrative Agent, Collateral Agent, Swing Line Lender and an L/C Issuer, PNC
Bank, National Association, 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 a term 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


 


1.01Defined
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.


 


“Additional
Term Loan” has meaning specified in Section 2.17.


 


“Additional
Term Loan Effective Date” has meaning specified in Section 2.17.


 


“Additional
Term Loan Joinder” has meaning specified in Section 2.17(b).


 


“Additional
Term Loan Lender” has meaning specified in Section 2.17.


 


“Additional
Term Loan Maturity Date” has meaning specified in Section 2.17(b).


 


“Administrative
Agent” means U.S. 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.


 




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


 


“Adverse PUCO
Order” means an order issued by PUCO restricting the payment of dividends from DP&L to Borrower that would result
in the inability of Borrower to make required payments under this Agreement.


 


“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.


 


“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-/Baa3/BBB- or greater	0.300%	1.750%	0.750%
	2	BB+/Ba1/BB+	0.350%	2.000%	1.000%
	3	BB/Ba2/BB 	0.400%	2.250%	1.250%
	4	BB-/Ba3/BB-	0.450%	2.750%	1.750%
	5	B+/B1/B+ or lower	0.500%	3.250%	2.250%




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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 5 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 5 shall apply.


 


Initially, the Applicable
Rate shall be determined based upon the Ratings specified in the certificate delivered pursuant to Section 4.01(a)(xvii).
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 5 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 U.S. Bank National Association, PNC Capital Markets LLC, 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 Revolving Credit


 




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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 U.S. Bank National Association
as its “prime rate,” and (c) the Eurodollar Rate 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 U.S. Bank, National Association
based upon various factors including U.S. 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 U.S. Bank National 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 Revolving Credit Loan or a Term Loan that is a Base Rate Loan.


 


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


 


“Borrowed
Money Debt” means Indebtedness of the type described in clause (a) of the definition of “Indebtedness” other
than any such Indebtedness (i) owed to the Borrower or a Subsidiary of the Borrower or (ii) secured by a Lien permitted by Section
7.01(p).


 


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


 


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


 


“Borrowing”
means a Term Borrowing, a Revolving Credit Borrowing or a Swing Line Borrowing, as the context may require.


 


“Borrowing
Limit” shall mean $330,000,000 until the Ohio Mortgage has been delivered to the Administrative Agent in accordance with
Section 6.16. After the Ohio Mortgage has been delivered, the Borrowing Limit shall mean, at any time of determination,
either (i) $425,000,000 (or, if the date of determination is after December 31, 2016, $400,000,000), if at such time, the Borrower
certifies to the Administrative Agent and the Lenders that the Certification Amount at such time is greater than or equal to the
Certification Amount on the Closing Date, or (ii) $425,000,000 minus the aggregate amount of the scheduled principal amortization
that would have been required to have been made under the Term Loan Facility as of such date (assuming no prepayments or refinancings
thereof); provided that, if the Borrower so elects, the Borrowing Limit at any time of determination shall be determined
to be the amount (not to exceed $425,000,000) equal to 80% of the sum of (x) the Certification Amount at such time and (y) the
fair market value of the Guarantor Collateral as set forth in a certificate or opinion of an independent engineer, appraiser or
other expert selected by the Borrower and made and dated not more than 365 days prior to such date.


 




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“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.


 


“Certification
Amount” means the amount equal to ten percent (10%) of the Consolidated Net Assets of the Borrower and its Subsidiaries
(except that Consolidated Current Debt Liabilities shall not reduce Consolidated Net Assets for purposes of determining the “Certification
Amount”) calculated as of the last day of the last fiscal quarter of the Borrower for which financial statements have been
provided in accordance with Section 6.01 hereof.


 


“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 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


 




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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 Borrower entitled to vote for members of the board of directors or equivalent governing body of the
Borrower on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire
pursuant to any option right); or


 


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


 


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


 


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


 


“Collateral”
means all of the “Collateral” and “Mortgaged Property” or “Trust Property”
or other similar term referred to in the Collateral Documents and all of the other property that is or is intended under the terms
of the Collateral Documents to be subject to Liens in favor of the Collateral Agent for the benefit of the Secured Parties.


 


“Collateral
Agent” means U.S. Bank National Association in its capacity as Collateral Agent under the Collateral Documents pursuant
to Section 9.10, or any successor Collateral Agent.


 




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“Collateral
Documents” means, collectively, the Pledge Agreement, the Mortgages, and each of the other agreements, instruments or
documents that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties.


 


“Commitment”
means a Term Loan Commitment or a Revolving Credit Commitment, as the context may require.


 


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


 


“Committed
Loan Notice” means a Term Loan Notice or a Revolving Credit Loan Notice, as the context may require.


 


“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
Current Debt Liabilities” means, for any period of the Borrower and its Subsidiaries on a consolidated basis, those portions
of the Borrower’s and its Subsidiaries’ Indebtedness (including Indebtedness evidenced by this Agreement) that are
outstanding on the Closing Date and that, in conformity with GAAP, are properly accounted for as a current liability on the balance
sheet of such Person.


 


“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, 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


 




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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 Assets” means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the aggregate amount
of assets (less reserves and other deductible items) of the Borrower and its Subsidiaries after deducting current liabilities of
the Borrower and its Subsidiaries, as shown on the consolidated balance sheet of the Borrower and its Subsidiaries contained in
its latest audited financial statements and prepared 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
Shareholders’ Equity” means, for the Borrower and its Subsidiaries on a consolidated basis, as of any date, (i)
the total of the amounts shown on the balance sheet of the Borrower and its Subsidiaries as of such date, determined in accordance
with GAAP, as (A) the par or stated value of all outstanding Equity Interests of the Borrower, (B) paid-in capital or capital surplus
relating to such Equity Interests and (C) any retained earnings or earned surplus, less (ii) (A) any accumulated deficit
and (B) any amounts attributable to Redeemable Stock, provided, however that Stockholders’ Equity will be calculated
without regard to any non-cash gain or loss recognized pursuant to the requirements of FAS 133 and FAS 87.


 


“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, at any date of determination, the sum of (a) Consolidated Total Debt plus (b) Consolidated Shareholders’ Equity.


 


“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; provided however,
for purposes of the calculations set forth in Section 7.11, “Consolidated Total Debt” shall not include any
guarantee by the Borrower or its Subsidiaries of any debt obligation of Ohio Valley Electric Corporation, an electric generating
company in which DP&L 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.


 




    	8



    	 



    

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


 


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


 


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


 




    	9



    	 



    

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 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.


 


“Disqualified
Stock” means with respect to any Person, any Equity Interest that by its terms, or by the terms of any security into
which it is convertible or for which it is exchangeable or exercisable, or upon the happening of any event is convertible or exchangeable
for Indebtedness on or prior to the Maturity Date then in effect (as of the date of the issuance, grant, sale, distribution or
other provision of such Equity Interests to holders thereof).


 


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


 


“DP&L”
means The Dayton Power and Light Company, an Ohio corporation.


 


“DP&L
Fifth Third Credit Facility” means that certain revolving credit agreement dated as of May 10, 2013 among DP&L, as
borrower, Fifth Third Bank, 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.


 


“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).


 




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“DP&L
PNC Credit Facility” means that certain revolving credit agreement among DP&L, as borrower, PNC Bank, National Association,
as administrative agent and the financial institutions from time to time party thereto as lenders, dated as of the date hereof,
as amended, replaced and refinanced in whole or in part from time to time.


 


“DPLER”
has the meaning specified in Section 7.01(w).


 


“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 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.


 




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


 


“Eurodollar
Rate” means:


 


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


 


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


 


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


 


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


 


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


 




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


 


“Excluded
Debt Issuance” means the issuance or incurrence of (a) unsecured Indebtedness or Indebtedness secured by Liens permitted
by Section 7.01 of this Agreement, (b) Indebtedness incurred in connection with a Permitted Acquisition, (c) Indebtedness
pursuant to any revolving credit facility, (d) Indebtedness incurred by a Subsidiary of the Borrower, (e) any Loans under this
Agreement, (f) Indebtedness outstanding under the DP&L PNC Credit Facility, (g) refinancings and replacements of Borrower's
Capital Trust II Indebtedness, (h) Indebtedness with a maturity of less than 365 days, (i) other Indebtedness in an aggregate
outstanding amount not to exceed $25,000,000, (j) any permitted refinancings and replacements of any Indebtedness under the foregoing
clauses (a) through (i), and (k) refinancings and replacements of any unsecured Indebtedness not otherwise prohibited by this Agreement.


 


“Excluded
Equity Issuance” means (a) an issuance of
Equity Interests by the Borrower or any of its Subsidiaries upon the exercise of warrants, options or other rights for the purchase
of such Equity Interests existing on the date hereof, (b) any issuance of an Equity Interest by a Subsidiary of the Borrower to
the Borrower or a wholly-owned Subsidiary of the Borrower and (c) any issuance of Equity Interests to, or contribution of Equity
Interests by, AES or any wholly owned Subsidiary of AES having an interest in the Borrower.


 


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


 




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“Extraordinary
Receipt” means any cash proceeds of insurance (other than proceeds of business interruption insurance to the extent such
proceeds constitute compensation for lost earnings), condemnation awards (and payments in lieu thereof) payable in respect of the
Collateral.


 


“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.


 


“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.


 




    	14



    	 



    

“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).


 


“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


 




    	15



    	 



    

determined by the guaranteeing
Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.


 


“Guarantor”
means DPL Energy, LLC, an Ohio limited liability company.


 


“Guarantor
Collateral” means that portion of the Collateral comprised of the “Mortgaged Property” (as defined in the
Mortgage).


 


“Guaranty”
means, collectively, the Guaranty made by the Guarantor in favor of the Lenders, dated on or about the date hereof.


 


“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 Law pertaining
to the protection of the environment.


 


“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.


 


“Increase
Effective Date” has the meaning set forth in Section 2.14(d).


 


“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;


 


(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;


 




    	16



    	 



    

(f)all
obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Redeemable Stock
or Disqualified 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).


 


“Indiana Mortgage”
has the meaning specified in the definition of “Mortgage”.


 


“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 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


 




    	17



    	 



    

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 Borrower’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-


 


“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


 




    	18



    	 



    

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 Revolving Credit Borrowing.


 


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


 


“L/C Issuer”
means, individually or collectively as the context may indicate, (a) U.S. Bank National Association, PNC Bank, National Association,
or Bank of America, N.A., each in its capacity as an issuer of Letters of Credit hereunder, (b) 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 (c) 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.


 


“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.


 




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“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 (7) 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 $200,000,000. The Letter of Credit Sublimit is part of, and not in addition
to, the Revolving Credit 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 Term Loan, a Revolving Credit
Loan or a Swing Line Loan.


 


“Loan Documents”
means, collectively, (a) this Agreement, (b) the Notes, (c) any agreement creating or perfecting rights in cash collateral
pursuant to the provisions of Section 2.15 of this Agreement, (d) the Guaranty, (e) the Collateral Documents, (f) the Fee
Letters and (g) each Issuer Document.


 


“Loan Party”
means the Borrower and the Guarantor.


 


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


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material adverse effect 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 any Loan Party to perform its obligations under any Loan Document; or (c) a material adverse effect upon the legality,
validity, binding effect or enforceability against any Loan Party of any Loan Document, which, for the avoidance of doubt, shall
include the existence of an Adverse PUCO Order; provided that the Separation Transactions shall not constitute a Material Adverse
Effect.


 


“Maturity
Date” means July 31, 2020; provided, however, that if such date is not a Business Day, the Maturity Date
shall be the next preceding Business Day and provided further that if the Borrower has not refinanced its senior
unsecured bonds due October 1, 2019 to have a


 




    	20



    	 



    

maturity date that
is at least 6 months later than July 31, 2020 before July 1, 2019, then the “Maturity Date” shall be July 1, 2019.


 


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


 


“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.


 


“Mortgage”
means, collectively, (i) that certain Open-End Leasehold Mortgage, Security Agreement, Assignment of Leases and Rents, and Fixture
Filing from the Guarantor for the benefit of the Collateral Agent in connection with this Agreement (the “Ohio Mortgage”)
and (ii) that certain Open-End Mortgage, Security Agreement, Assignment of Leases and Rents, and Fixture Filing for the benefit
of the Collateral Agent in connection with this Agreement (the “Indiana Mortgage”).


 


“Mortgage
Policies” has the meaning set forth in Section 4.01(a)(viii).


 


“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.


 


“Net Cash Proceeds” means:


 


(a)with
respect to any Disposition (subject to the terms of Section 2.05(b)(i)) by the Borrower or any of its Subsidiaries, the
excess, if any, of (i) the sum of cash and cash equivalents received in connection with such transaction (including any cash or
cash equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only
as and when so received) over (ii) the sum of (A) the principal and interest amount of any Indebtedness that is secured by the
applicable asset and that is required to be repaid in connection with such transaction (other than Indebtedness under the Loan
Documents), (B) the reasonable and customary out-of-pocket expenses incurred by the Borrower or such Subsidiary in connection with
such transaction (including, without limitation, legal accounting and investment banking fees, and brokerage and sales commissions),
(C) income taxes reasonably estimated to be actually payable within two years of the date of the relevant transaction as a result
of any gain recognized in connection therewith; provided that, if the amount of any estimated taxes pursuant to subclause (C) exceeds
the amount of taxes actually required to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall
constitute Net Cash Proceeds and (D) any deduction of appropriate amounts to be


 




    	21



    	 



    

provided
by the Borrower as a cash reserve in accordance with GAAP against liabilities associated with the asset disposed of in such transaction
and retained by the Borrower after such sale or other disposition; and


 


(b)with
respect to the sale or issuance of any Equity Interest by the Borrower (other than Excluded Equity Issuances), or the incurrence
or issuance of any Indebtedness by the Borrower (other than Excluded Debt Issuances), the excess of (i) the sum of the cash and
cash equivalents received in connection with such transaction over (ii) the underwriting discounts and commissions, and other reasonable
and customary out-of-pocket expenses (including, without limitation, legal accounting and investment banking fees, and brokerage
and sales commissions), incurred by the Borrower or such Subsidiary in connection therewith.


 


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


 


“Note”
means a Term Note or a Revolving Credit Note, as the context may require.


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document
or otherwise with respect to any Loan or Letter of Credit, 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 any Loan Party 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.


 


“Ohio Mortgage”
has the meaning specified in the definition of “Mortgage”.


 


“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).


 




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“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 Term Loans, Revolving Credit 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 Term Loans, Revolving
Credit 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.


 


“Pari Secured
Debt” means Indebtedness of the Borrower (and any guarantee thereof by the Guarantor having terms substantially similar
to the Guaranty) from bank loans, notes or other financing (i) which is secured by the Collateral on a pari passu basis among the
Secured Parties and (ii) the proceeds of which is used substantially contemporaneously with the incurrence thereof to refinance
then existing Indebtedness of the Borrower or its Subsidiaries.


 


“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, (d) as of the date of the consummation
of such Acquisition, all approvals required in connection therewith shall have


 




    	23



    	 



    

been obtained, and
(e) after giving Pro Forma Effect to such Acquisition, the ratio of (1) Consolidated Total Debt to Consolidated EBITDA shall be
at least 0.25 to 1.00 less than the maximum Consolidated Total Debt to Consolidated EBITDA ratio set forth opposite the most recently
ended fiscal quarter in Section 7.11 and (2) Consolidated EBITDA to Consolidated Interest Charges shall be no less than
the minimum Consolidated EBITDA to Consolidated Interest Charges ratio set forth opposite the most recently ended fiscal quarter
in Section 7.11.


 


“Permitted
Liens” has the meaning specified in Section 7.01.


 


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


 


“Platform”
has the meaning specified in Section 6.02.


 


“Pledge Agreement”
means that certain Pledge Agreement dated on or about the date hereof between Borrower and the Collateral Agent, for the benefit
of the Secured Parties.


 


“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 (i) reflected on a basis consistent with Regulation S-


 




    	24



    	 



    

X promulgated
by the Securities and Exchange Commission or (ii) 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.


 


“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 Revolving Credit Loans or Term
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


 




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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, 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).


 


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


 


“Revolving
Credit Commitment” means, as to each Lender, its obligation to (a) make Revolving Credit Loans to the Borrower pursuant
to Section 2.01(a), (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 under the caption “Revolving Credit Commitment” or opposite such caption 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.


 


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


 


“Revolving
Credit Note” means promissory note made by the Borrower in favor of a Lender evidencing Revolving Credit Loans made by
such Lender, substantially in the form of Exhibit B-2.


 


“Revolving
Credit Loan Notice” means a notice of (a) a Revolving Credit Borrowing, (b) a conversion of Revolving Credit Loans from
one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which shall be substantially
in the form of Exhibit A-2 or such other form as may be approved by the Administrative Agent including any form on an electronic
platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed
by a Responsible Officer of the Borrower


 




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“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.


 


“Scheduled
Term Loan Installment” has the meaning specified in Section 2.07.


 


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


 


“Secured Parties”
means, collectively, the Administrative Agent, the Lenders, the L/C Issuers, each co-agent or sub-agent appointed by the Administrative
Agent from time to time pursuant to Section 9.05, and the other Persons the Obligations owing to which are or are purported
to be secured by the Collateral under the terms of the Collateral Documents; and in the event any Pari Secured Debt is outstanding,
all holders of such Pari Secured Debt.


 


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


 


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


 


“Solvent”
and “Solvency” mean, with respect to any Person on any date of determination, that on such date (a) the
fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of
such Person, (b) the present fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities
as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction,
for which such Person’s property would constitute an unreasonably small capital, and (e) such Person is able to pay its debts
and liabilities, contingent obligations and other commitments as they mature in the ordinary course of business. The amount of
contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing
at such time, represents the amount that can reasonably be expected to become an actual or matured liability.


 


“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


 




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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.


 


“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 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 U.S. 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-3.


 




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“Swing Line
Sublimit” means, at any time, an amount equal to ten percent (10%) of the Revolving Credit Commitments at such time.
The Swing Line Sublimit is part of, and not in addition to, the Revolving Credit 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 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.


 


“Term Borrowing”
means a borrowing consisting of simultaneous Term 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(b).


 


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


 


“Term Loan
Commitment” means, as to each Lender, its obligation to make Loans to the Borrower pursuant to Section 2.01(b)
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 under the caption “Term Loan Commitment” or opposite such caption 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.


 


“Term Loan
Facility” means, at any time, the aggregate principal amount of the Loans of all Lenders outstanding at such time.


 


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


 


“Term Note”
means promissory note made by the Borrower in favor of a Lender evidencing Term Loans made by such Lender, substantially in the
form of Exhibit B-1.


 


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


 


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


 




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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 




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(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.


 


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.


 


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


 


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


 


1.06Letter 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


 




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ARTICLE
II. the COMMITMENTS and Credit Extensions


 


2.01Loans.


 


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


 


(b)Term
Loans. Subject to the terms and conditions set forth herein, each Lender severally agrees to make a single loan in Dollars
to the Borrower on the Closing Date in an amount not to exceed at any time outstanding the amount of such Lender’s Term Loan
Commitment (each such loan, a “Term Loan”). The Term Borrowing shall consist of Term Loans made simultaneously
by the Lenders in accordance with their respective Applicable Percentage of the Term Loan Facility. Amounts borrowed under this
Section 2.01(b) and repaid or prepaid may not be reborrowed. Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.


 


2.02Borrowings,
Conversions and Continuations of Loans.


 


(a)Each
Borrowing, each conversion of Revolving Credit Loans or Term 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 Borrowing of, conversion to or continuation of Eurodollar Rate Loans, and (ii) on the requested date of any Borrowing
of Base Rate Committed Loans or of any conversion of Eurodollar Rate Loans to 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 Section 2.03(c) and 2.04(c), each Revolving Credit Borrowing or Term 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 Revolving
Credit Borrowing, a Term Borrowing, a conversion of Revolving Credit Loans or Term Loans from


 




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


 


(b)Following
receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable
Percentage of the applicable Revolving Credit Loans or Term 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 Revolving Credit Borrowing or a Term Loan Borrowing, each Lender shall
make the amount of its Revolving Credit Loan or Term 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 U.S. 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 U.S. 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 Revolving Credit Borrowings, Term Loan Borrowings, all conversions of Revolving Credit Loans or Term Loans
from one Type to the other, and all continuations of Revolving Credit Loans or Term Loans as the same Type, there shall not be
more than ten Interest Periods in effect with respect to Revolving Credit Loans or Term Loans.


 




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2.03Letters
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 Revolving Credit 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 Revolving Credit Commitment,
and (z) the Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request by the Borrower
for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower that the L/C Credit
Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits,
and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving,
and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. 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


 




    	34



    	 



    

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


 




    	35



    	 



    

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


 




    	36



    	 



    

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 Revolving Credit Borrowing of Base Rate Loans to be disbursed on the


 




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Honor Date
in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for
the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the 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 Revolving Credit 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 Revolving Credit Borrowing of Base Rate Loans because the
conditions set forth in Section 4.02 (other than delivery of a Committed Loan Notice) cannot be satisfied or for any other
reason, such Unreimbursed Amount that is not so refinanced shall be denominated an 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 Revolving Credit 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 Revolving Credit 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 Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions
set forth in Section 4.02 (other than delivery by the Borrower of a Committed Loan Notice). No such making of an L/C Advance
shall relieve or otherwise impair the obligation of the


 




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Borrower
to 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 Revolving Credit Loan included in the relevant Revolving Credit Borrowing or L/C Advance in respect of the
relevant L/C Borrowing, as the case may be. A certificate of the 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:


 




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(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


 




    	40



    	 



    

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


 


(i)Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay directly to (i) any L/C Issuer,
in its capacity as an 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 first Business
Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion
thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06. In
addition, the Borrower shall pay directly to 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.


 


2.04Swing 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 Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may


 




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exceed the amount of
such Lender’s Revolving Credit 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 Revolving
Credit 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
Revolving Credit 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 Revolving Credit 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


 




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specified
therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Revolving Credit 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 Revolving Credit 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 Revolving Credit Borrowing in accordance with Section 2.04(c)(i),
the request for Base Rate Revolving Credit 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 Revolving Credit Loan included
in the relevant 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 Revolving Credit 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,


 




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that each
Lender’s obligation to make Revolving Credit 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 Revolving Credit 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.


 


2.05Prepayments.


 


(a)Optional.
The Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay 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 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 such


 




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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 condition is 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 Loans of the Lenders in accordance with
their respective Applicable Percentages. Any partial prepayment of a Term Loan shall be applied to the next Scheduled Term Loan
Installment in direct order or as otherwise selected by the Borrower.


 


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.


 


(b)Mandatory.


 


(i)If
the Borrower or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Section
7.04(a), (b), (c), (d), (e), (f), (h), (i) and (j) which results in the realization by such Person
of Net Cash Proceeds), the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds
within three Business Days after receipt thereof by such Person (such prepayments to be applied as set forth in clause (iv) below);
provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section
2.05(b)(i), at the election of the Borrower (as notified by the Borrower to the Administrative Agent within 90 days after or
prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, the Borrower and its Subsidiaries
may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 180 days after the receipt of such
Net Cash Proceeds, such reinvestment shall have been consummated, or the Borrowers or such Subsidiary shall have committed to such
reinvestment in writing (and the resulting reinvestment is consummated within 270 days after receipt of such Net Cash Proceeds)
(as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that
any Net Cash Proceeds not subject to such written agreement or so reinvested shall be applied to the prepayment of the Loans within
30 days of receipt thereof (or termination of such written agreement without consummation of purchase) as set forth in this Section
2.05(b)(i).


 




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(ii)Upon
the sale or issuance by the Borrower of any of its Equity Interests (other than Excluded Equity Issuances), the Borrower shall
prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom within three Business
Days after receipt thereof by the Borrower (such prepayments to be applied as set forth in clause (iv) below).


 


(iii)Upon
the incurrence or issuance by the Borrower of any Indebtedness (other than Excluded Debt Issuances), the Borrower shall prepay
an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom within three Business Days
after receipt thereof by the Borrower (such prepayments to be applied as set forth in clause (iv) below).


 


(iv)Upon
any Extraordinary Receipt received by or paid to or for the account of any Loan Party, and not otherwise included this Section
2.05(b), the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received
therefrom immediately upon receipt thereof by such Loan Party (such prepayments to be applied as set forth in clauses (vi) below);
provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof),
at the election of the Loan Party (as notified by the Loan Party to the Administrative Agent on or prior to the date of receipt
of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan
Party may apply within 90 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real
property in respect of which such cash proceeds were received; and provided, further, however, that any cash proceeds not so applied
shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).


 


(v)Each
prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied to the Term Loans of the
Lenders in accordance with their respective Applicable Percentages. Each mandatory prepayment of Loans in the foregoing provisions
shall be applied to the remaining Scheduled Term Loan Installments on a pro rata basis.


 


(vi)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 Revolving Credit Loans and the Swing Line Loan the Total Outstandings exceed the Aggregate
Commitments then in effect.


 


(vii)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


 




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Loans and
L/C Obligations are not authorized by the then effective necessary or required approvals, consents and authorizations from such
Governmental Authorities.


 


2.06Termination
of Commitments. 


 


(a)Mandatory.
The Term Loan Commitments shall be automatically and permanently reduced to zero at 11:00 am Eastern time on the date of the Term
Borrowing.


 


(b)Application.
The Borrower may, upon notice to the Administrative Agent, terminate the Revolving Credit Commitments, or from time to time permanently
reduce the Revolving Credit 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 Revolving Credit 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 Revolving Credit
Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Revolving Credit Commitments, the
Letter of Credit Sublimit or the Swing Line Sublimit shall be automatically reduced by the amount of such excess, as applicable.
The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Revolving Credit
Commitments. Any reduction of the Revolving Credit Commitments shall be applied to the Revolving Credit Commitment of each Lender
according to its Applicable Percentage. All fees accrued until the effective date of any termination of the Revolving Credit Commitments
shall be paid on the effective date of such termination. A notice of Revolving Credit 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.


 


2.07Repayment
of Loans.


 


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


 


(b)In
addition to payments made pursuant to clause (a), the Borrower shall repay the Term Loans in the amounts and on the dates set forth
on Schedule 2.07 (each, together with the payment on the Term Loan Maturity Date a “Scheduled Term Loan Installment”).


 


2.08Interest.


 


(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


 




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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 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.


 


2.09Fees.
In addition to certain fees described in subsection (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 Revolving Credit Commitments exceed the sum of (i) the Outstanding Amount of Revolving Credit Loans and (ii) the Outstanding
Amount of L/C Obligations, subject to adjustment as provided in Section 2.16. 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


 




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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.


 


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


 


2.11Evidence
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.


 




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2.12Payments
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 Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Committed
Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent
such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available
on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made
such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Revolving Credit Borrowing or Term Loan 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 Revolving Credit Borrowing or Term Loan Borrowing to the Administrative Agent, then the amount so paid
shall constitute such Lender’s Revolving Credit Loan or Term Loan, as applicable, included in such Revolving Credit Borrowing
or Term Loan 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.


 




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(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.


 


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


 


(d)Obligations
of Lenders Several. The obligations of the Lenders hereunder to make Revolving Credit Loans or Term 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 Revolving Credit Loan or Term 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 Revolving Credit Loan or
Term 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.


 


2.13Sharing
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 Revolving Credit Loans or Term 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 Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater


 




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proportion shall (a)
notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Revolving Credit
Loans or Term 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 Revolving Credit Loans or Term 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
Loans or subparticipations in L/C Obligations and Swing Line Loans to any assignee or participant, other than an assignment to
the Borrower or any Affiliate thereof (as to which the provisions of this Section shall apply).


 


(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.


 


2.14Increase
in Revolving Credit Commitments.  


 


(a)Request for
Increase. After the Ohio Mortgage has been delivered to the Administrative Agent in accordance with Section 6.16, 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 Revolving Credit Commitments by an amount (for all such requests) not exceeding $95,000,000;
provided that any such request for an increase shall be in a minimum amount of $10,000,000.  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 (10) 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 Revolving Credit 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
Revolving Credit Commitment.


 




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(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 Revolving Credit 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 (x) 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 (A)
certifying and attaching the resolutions adopted by the Borrower approving or consenting to such increase, (B) certifying that
after giving effect to such increase, and making such calculations as if such increase was effective as of the first fiscal period
applicable to such calculations, the Loan Parties are in compliance with Section 7.11 and (C) certifying that, before and
after giving effect to such increase, (I) the representations and warranties contained in Article V are true and correct
in all material respects 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 (II) no Default exists, and (y) pay all fees and expenses owed to the Administrative Agent or the lenders in connection
with such increase. Unless otherwise agreed by the Administrative
Agent, the Borrower shall prepay any Revolving Credit 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 Revolving Credit Loans ratable
with any revised Applicable Percentages arising from any non-ratable increase in the Revolving Credit Commitments under this Section.


 


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


 


2.15Cash 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


 




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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 U.S. 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 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.


 




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(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.


 


2.16Defaulting
Lenders.


 


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


 


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


 




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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 or the related Letters of Credit were issued at a time when
the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans
of, and L/C Borrowings owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans
of, or L/C 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


 




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Revolving
Credit Commitment of that Non-Defaulting Lender minus (2) the aggregate Outstanding Amount of the Revolving Credit 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 Revolving Credit Loans or Term 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.


 


2.17Additional
Term Loans. The Borrower may by written notice to the Administrative Agent elect to request the establishment of one or more
new term loans (each, an “Additional Term Loan”) for the purpose of refinancing Indebtedness of the Borrower
and its Subsidiaries. Each such notice shall specify (i) the date (each, an “Additional Term Loan Effective Date”)
on which the Borrower proposes that the Additional Term Loan Lenders make available to the Borrower the Additional Term Loan, which
shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and
(ii) the identity of each Eligible Assignee to whom the Borrower proposes any portion of such Additional Term Loans be allocated
and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of
the Additional Term Loans may elect or decline, in its sole discretion, to provide such Additional Term Loans. Each Additional
Term Loans shall be in a minimum amount of $10,000,000. Any Lender or Eligible Assignee who chooses to lend an Additional Term
Loan shall be referred to herein as an “Additional Term Loan Lender”.


 


(a)Conditions.
The Additional Term Loans shall become effective as of the Additional Term Loan Effective Date; provided that:


 


(i)each
of the conditions set forth in Sections 4.02 shall be satisfied;


 


(ii)no
Default shall have occurred and be continuing or would result from the borrowings to be made on the Additional Term Loan Effective
Date;


 


(iii)the
representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects
on and as of the Additional Term Loan Effective Date, except that (i) if a qualifier relating to materiality, Material Adverse
Effect or a similar concept applies, such representation or warranty shall be


 




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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 and (iii) for purposes of this
Section 2.17, 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;


 


(iv)after
giving effect to such Additional Term Loans, and making such calculations as if such increase was effective as of the first fiscal
period applicable to such calculations, the Loan Parties shall be in compliance with each of the covenants set forth in Section
7.11 as of the end of the latest fiscal quarter for which internal financial statements are available; and


 


(v)the
aggregate amount of the Additional Term Loans shall not exceed the amount of the Indebtedness (plus any accrued interest, fees,
premiums and expenses associated therewith) to be refinanced by such Additional Term Loans;


 


(vi)after
giving effect to the Additional Term Loans and the application of the proceeds thereof, the aggregate amount of Indebtedness secured
by the Collateral shall not exceed the Borrowing Limit;


 


(vii)the
Borrower and the Guarantor shall be the only obligors on the Additional Term Loans;


 


(viii)the
Additional Term Loans satisfy the terms of Section 2.17(b);


 


(ix)
the Borrower shall deliver to the Administrative Agent evidence that the proceeds of the Additional Term Loan will be applied substantially
simultaneously with the Additional Term Loan Effective Date to the Indebtedness of the Borrower or its Subsidiary such Additional
Term Loan is to refinance;


 


(x)all
fees and expenses owing in respect of such Additional Term Loans shall have been paid;


 


(xi)the
Borrower shall deliver or cause to be delivered officer’s certificates and legal opinions of the type delivered on the Closing
Date to the extent reasonably requested by, and in form and substance reasonably satisfactory to, the Administrative Agent.


 


(b)Terms
of New Loans and Commitments. The Term Loans shall contain or provide the following:


 


(i)the
Additional Term Loans shall be secured solely by the Collateral;


 


(ii)the
Additional Term Loans shall have loan documentation and covenants therein (if different from the Loan Documents) that are no more
restrictive than the terms and conditions of the Loan Documents and covenants in the Loan Documents; provided


 




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however,
if the Additional Term Loans have loan documentation or covenants that are more restrictive than the Loan Documents and covenants
therein, then such Loan Documents and covenants shall apply to the Term Loan Facility and the Revolving Credit Facility herein;


 


(iii)the
weighted average life to maturity of any Additional Term Loans shall be no shorter than the remaining weighted average life to
maturity of the then existing Term Loans;


 


(iv)the
maturity date of Additional Term Loans (the “Additional Term Loan Maturity Date”) shall not be earlier than
the Maturity Date; and


 


(c)Joinder.
the Additional Term Loan shall be effected by a joinder agreement (the “Additional Term Loan Joinder”) executed
by the Borrower, the Administrative Agent and each Additional Term Loan Lender, in form and substance reasonably satisfactory to
each of them. Notwithstanding the provisions of Section 10.01, the Additional Term Loan Joinder may, without the consent
of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate,
in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.17. In addition, unless
otherwise specifically provided herein, all references in Loan Documents to Term Loans shall be deemed, unless the context otherwise
requires, to include references to Additional Term Loans, respectively, made pursuant to this Agreement. This Section 2.17
shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary.


 


(d)Making
of New Term Loans. On any Additional Term Loan Effective Date, subject to the satisfaction of the foregoing terms and conditions,
each Additional Term Lender shall make an Additional Term Loan to the Borrower in the amount so agreed pursuant to Section 2.17(a).


 


(e)Equal
and Ratable Benefit. The Loans established pursuant to this paragraph shall constitute Term Loans under, and shall be entitled
to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit
equally and ratably from the Guarantees and security interests created by the Collateral Documents. The Loan Parties shall take
any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted
by the Collateral Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any
such class of Term Loans.


 




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ARTICLE
III.TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01Taxes.
 


 


(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 fifteen (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 fifteen (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


 




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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 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


 




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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;


 


(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


 




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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 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


 




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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 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.


 


3.02Illegality.
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.


 


3.03Inability
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


 




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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 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.


 


3.04Increased
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


 




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(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);


 


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


 




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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 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.


 


3.05Compensation
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;


 




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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.


 


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.


 


3.06Mitigation
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.


 


3.07Survival.
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


 


4.01Conditions
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


 




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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:


 


(i)executed
counterparts of this Agreement, the Collateral Documents, the Guaranty and each of the other Loan Documents (excluding the Ohio
Mortgage) 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)proper
financing statements and/or fixture filings in form appropriate for filing under the Uniform Commercial Code of all jurisdictions
that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Pledge Agreement
and the Indiana Mortgage, covering the Collateral described in the Pledge Agreement and the Indiana Mortgage;


 


(iv)certified
copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing
statements, lien notices or comparable documents (together with copies of such financing statements and documents) that name any
Loan Party as debtor and that are filed in those state and county jurisdictions in which any Loan Party is organized or maintains
its principal place of business and such other searches that the Administrative Agent deems necessary or appropriate, none of which
encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens);


 


(v)such
certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the Loan
Parties 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;


 


(vi)such
documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized
or formed, and that such Loan Party is validly existing, in good standing and qualified to engage in business in the jurisdiction
where it is organized and, in the case of the Guarantor, in the State of Indiana;


 


(vii)evidence
that a counterpart of the Indiana Mortgage has been duly executed, acknowledged and delivered and are in form suitable for filing
or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create
a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the
Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and other fees in connection therewith
have been paid;


 




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(viii)with
respect to the Indiana Mortgage, a fully paid American Land Title Association Lender’s Extended Coverage title insurance
policy (a “Mortgage Policy”), with endorsements and in amounts, in each case reasonably acceptable to the Administrative
Agent (provided the amount of each Mortgage Policy shall not exceed the fair market value of the real property covered by the applicable
mortgage as reasonably estimated by the Borrower), issued by First American Title Insurance Company or another title insurer reasonably
acceptable to the Administrative Agent, insuring the such Indiana Mortgage to be valid first and subsisting Liens on the property
described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s Liens)
and encumbrances, excepting Permitted Liens (including the encumbrances shown on the Mortgage Policy), and providing for such other
affirmative insurance as the Administrative Agent may deem reasonably necessary or desirable;


 


(ix)American
Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable)
have been paid, and dated no more than 40 days before the Closing Date, certified to the Administrative Agent and the issuer of
the Mortgage Policies covering the Indiana Mortgage in a manner satisfactory to the Administrative Agent by a land surveyor duly
registered and licensed in the States in which the property described in such surveys is located and acceptable to the Administrative
Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements, parking spaces,
rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements
or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent; provided,
if despite reasonable efforts of the Borrower such survey is not complete as of the Closing Date, such survey dated after the Closing
Date shall be delivered as soon as practicable but no later than 30 days after such date;


 


(x)a
completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each
Mortgaged Property covered by the Indiana Mortgage (together with a notice about special flood hazard area status and flood disaster
assistance duly executed by the Borrower and each Loan Party relating thereto, if applicable);


 


(xi)a
Phase I environmental site assessment in conformance with the scope and limitations of ASTM International’s Standard Practice
for Environmental Site Assessments: Phase I Environmental Site Assessment Process E1527-13 for each of the Guarantor’s generating
stations located in Poneto, Indiana and Moraine, Ohio;


 


(xii)certificates
attesting to the Solvency of each Loan Party from its chief financial officer or treasurer;


 


(xiii)written
opinion(s) of counsel(s) (including New York counsel as well as local Ohio and Indiana counsels) to the Loan Parties, addressed
to the Administrative Agent, the Collateral Agent and each Lender, in form and substance reasonably acceptable to the Administrative
Agent; 


 




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(xiv)a
certificate signed by a Responsible Officer of the Borrower certifying (A) that the conditions specified in Sections 4.02(a),
(b) and (c) have been satisfied, (B) the current Ratings, (C) the Certification Amount and (D) the Borrowing Limit;


 


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


 


(xvi)certificates
of insurance, naming the Collateral Agent, on behalf of the Secured Parties, as an additional insured or lenders’ loss payee,
as the case may be, under all insurance policies (including flood insurance policies) maintained with respect to the assets and
properties of the Loan Parties that constitutes Collateral;


 


(xvii)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


 


(xviii)evidence
that the conditions precedent to the effectiveness of the DP&L PNC 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 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 Business Days prior to the Closing Date and required to be paid
pursuant to the Fee Letters or the Commitment Letters.


 


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. 


 




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4.02Conditions
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 Revolving Credit Loans or Term 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)
and (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.


 


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


 


(c)The
Administrative Agent shall have received confirmation from the Borrower that the total amount of Indebtedness secured by the Collateral
is less than or equal to the Borrowing Limit most recently certified to the Lenders by the Borrower in accordance with Section
6.02(b).


 


(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 Revolving Credit Loans or Term Loans to the other
Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty
that the conditions specified in Sections 4.02(a), and (b) have been satisfied on and as of the date of the applicable
Credit Extension. For the avoidance of doubt, in the event that the condition not satisfied on and as of the date of any applicable
Credit Extension is the existence of a Material Adverse Effect resulting from an Adverse PUCO Order, (i) the Lenders and L/C Issuers
shall not be required to make any Credit Extension and (ii) conversions of Revolving Credit Loans or Term Loans from one Type to
the other and continuation of Eurodollar Rate Loans shall be permitted.


 


ARTICLE
V. REPRESENTATIONS AND WARRANTIES


 


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


 


5.01Existence,
Qualification and Power. Each Loan Party (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,


 




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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.


 


5.02Authorization;
No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document, have been duly authorized
by all necessary corporate or limited liability company action, and do not and will not (a) contravene the terms of any of such
Loan Party’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 such Loan Party is a party or such Loan Party 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 such Loan Party 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.


 


5.03Governmental
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, any Loan Party of this Agreement or any other Loan Document, except for such approvals, consents, exemptions,
authorizations, actions, notices and filings that have been obtained or made on or before the Closing Date and are in full force
and effect.


 


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


 


5.05Financial
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 any litigation, arbitration
or proceeding that could not reasonably be expected to have a Material Adverse Effect).


 




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(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.


 


5.06Litigation.


 


(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 Loan Parties 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.


 


5.07No 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.


 


5.08Ownership
of Property.


 


(a)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.


 


(b)Schedule 5.08
sets forth a complete and accurate list of all Liens on the property or assets of each Loan Party except for Permitted Liens, showing
as of the date hereof the lienholder thereof, the principal amount of the obligations secured thereby and the property or


 




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assets of
such Loan Party subject thereto. The property of each Loan Party is subject to no Liens, other than Liens set forth on Schedule 5.08,
and as otherwise permitted by Section 7.01. 


 


(c)The
Indiana Mortgage delivered on the Closing Date, and the Ohio Mortgage once delivered, are effective to create in favor of the Collateral
Agent (for the benefit of the Secured Parties) a legal, valid and enforceable first priority Lien on all of the Guarantor’s
right, title and interest in and to the Mortgaged Property (as such term is defined in the applicable Mortgage) thereunder, and
when such Mortgage is filed or recorded in the proper real estate filing or recording offices, and all relevant mortgage taxes
and recording charges are duly paid, the Collateral Agent (for the benefit of the Secured Parties) shall have a perfected first
priority Lien on, and security interest in, all right, title, and interest of the Guarantor in such Mortgaged Property and, to
the extent applicable, subject to Section 9-315 of the Uniform Commercial Code, the proceeds thereof, in each case prior and superior
in right to the Lien of any other person, except for Permitted Liens.


 


(d)The Mortgaged
Property (as such term is defined in the applicable Mortgage) encompasses all of the real property and improvements required for
the Guarantor to operate the peaker plants on such Mortgaged Property.


 


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


 




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


 


5.10Insurance.
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.


 


5.11Taxes.
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.


 


5.12ERISA Compliance.


 


(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


 




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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.


 


5.13Subsidiaries.
As of the Closing Date, the Borrower's existing Subsidiaries are listed on Part A of Schedule 5.13. Additionally, Part B
of Schedule 5.13, B shows a complete and accurate list of all Loan Parties, showing as of the Closing Date (as to each Loan
Party) the jurisdiction of its incorporation, the address of its principal place of business and its U.S. taxpayer identification
number.


 


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


 


(a)No
Loan Party is engaged or will 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.


 


5.15Disclosure.
No report, financial statement, certificate or other information (other than projections and forward-looking information and information
of a general economic nature


 




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or industry nature)
furnished by or on behalf of any Loan Party 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, each Loan Party 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.


 


5.16Compliance
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 individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.


 


5.18Solvency.
No Loan Party is insolvent as defined in any applicable state or federal statute, nor will any Loan Party 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.


 


5.19Employment
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.


 




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5.20Casualty,
Etc. As of the date of the initial Credit Extension, none of the Collateral is affected by any material fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy or other material
casualty (whether or not covered by insurance), condemnation or eminent domain proceeding.


 


5.21OFAC.
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.


 


5.22Anti-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:


 


6.01Financial
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 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


 




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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(d), 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.


 


6.02Certificates;
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)concurrently
with the delivery of the financial statements referred to in Sections 6.01(a) and (b), a duly completed 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) setting forth the then current Certification Amount and Borrowing Limit;


 


(c)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


 


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


 


Documents required
to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(c) or (d) (to the extent any such
documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Borrower posts (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


 




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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, Debt Domain, 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.”


 


6.03Notices.
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 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;


 




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(e)of
any amendment to the Organization Documents permitted hereunder of a Loan Party filed in the applicable office in the jurisdiction
where it is organized;


 


(f)Any Rating change;


 


(g)of the occurrence
of any event for which the Borrower is required to make a mandatory prepayment pursuant to Section 2.05(b);


 


(h)no later than
July 1, 2019, of Borrower’s failure to refinance its senior unsecured bonds due October 1, 2019 with a maturity date that
is at least 6 months later than July 31, 2020; and


 


(i)if any of the
Collateral having an aggregate replacement value in excess of $5,000,000 is affected in any material respect by any fire, explosion,
accident, act of God or other casualty (whether or not covered by insurance), condemnation or eminent domain proceeding.


 


Each notice pursuant
to this Section 6.03 (other than Sections 6.03(d), (e), (f), (g) and (h)) 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.


 


6.04Payment
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.


 


6.05Preservation
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.


 


6.06Maintenance
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


 




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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).


 


6.07Maintenance
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. All such insurance with respect to the Mortgaged
Property shall (i) provide for not less than 30 days’ prior notice to the Collateral Agent of termination, lapse or cancellation
of such insurance, (ii) name the Collateral Agent as mortgagee (in the case of property insurance) or additional insured on behalf
of the Secured Parties (in the case of liability insurance) or lenders’ loss payee (in the case of property insurance), as
applicable, and (iii) be reasonably satisfactory in all other respects to the Collateral Agent. If any portion of any buildings
or other structures subject to a Mortgage is at any time located in an area identified by the Federal Emergency Management Agency
(or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the
National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), then the Borrower shall, or shall
cause each Loan Party to (i) maintain, or cause to be maintained, with a financially sound and reputable insurer, flood insurance
covering such buildings or other structures and any personal property subject to the Mortgage in an amount and otherwise sufficient
to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Administrative
Agent evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent.


 


6.08Compliance
with Laws. Comply in all material respects with the requirements of all Laws (including all Environmental 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.


 


6.09Books 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.


 


6.10Inspection
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;


 




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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.


 


6.11Use 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.


 


6.12Senior Debt.
Ensure that (a) the claims of the Administrative Agent and the Lenders in respect of the Obligations of the Loan Parties will not
be subordinate to, and will in all respects rank at least pari passu with or senior to, the claims of every unsecured creditor
of the Loan Parties, and (b) any Indebtedness of the Loan Parties that is subordinated in any manner to the claims of any other
senior creditor of the Loan Parties will be subordinated in like manner to such claims of the Administrative Agent and the Lenders.


 


6.13Maintenance
of Collateral. Ensure that the Collateral Documents remain in full force and effect and the Collateral is perfected with a
first priority security or mortgage Lien; provided however, such covenant shall not apply at all times that the Borrower’s
senior unsecured long-term debt is rated Investment Grade.


 


6.14Further
Assurances. Promptly upon request by the Administrative Agent, or any Lender through the Administrative Agent, (a) correct
any material defect or error that may be discovered in any Loan Document or in the execution, acknowledgment, filing or recordation
thereof, and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such
further acts, deeds, certificates, assurances and other instruments as the Collateral Agent, or any Lender through the Collateral
Agent, may reasonably require from time to time in order to (i) carry out more effectively the purposes of the Loan Documents,
(ii) to the fullest extent permitted by applicable law, subject any Loan Party’s or any of its Subsidiaries’ properties,
assets, rights or interests to the Liens now or hereafter intended to be covered by any of the Collateral Documents, (iii) perfect
and maintain the validity, effectiveness and priority of any of the Collateral Documents and any of the Liens intended to be created
thereunder and (iv) assure, convey, grant, assign, transfer, preserve, protect and confirm more effectively unto the Collateral
Agent the rights granted or now or hereafter intended to be granted to the Collateral


 




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Agent under any Loan
Document or under any other instrument executed in connection with any Loan Document to which any Loan Party or any of its Subsidiaries
is or is to be a party, and cause each of its Subsidiaries to do so.


 


6.15Anti-Corruption
Laws. Conduct its businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act
2010, and other similar anti-corruption legislation in other jurisdictions, and maintain policies and procedures designed to promote
and achieve compliance with such laws.


 


6.16Ohio
Mortgage. Use its reasonable efforts to, within ninety (90) days of the Closing Date, deliver to the Administrative Agent
each 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, and each in form and substance
reasonably satisfactory to the Administrative Agent and each of the Lenders:


 


(a)proper
financing statements and/or fixture filings in form appropriate for filing under the Uniform Commercial Code of all jurisdictions
that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Ohio Mortgage, covering
the Collateral described in the Ohio Mortgage;


 


(b)evidence
that a counterpart of the Ohio Mortgage has been duly executed, acknowledged and delivered and is in form suitable for filing
or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create
a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the
Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and other fees in connection therewith
have been paid;


 


(c)with
respect to the Ohio Mortgage, a Mortgage Policy, with endorsements and in amounts, in each case reasonably acceptable to the Administrative
Agent (provided the amount of such Mortgage Policy shall not exceed the fair market value of the real property covered by the
applicable mortgage as reasonably estimated by the Borrower), issued by First American Title Insurance Company or another title
insurer reasonably acceptable to the Administrative Agent, insuring the Ohio Mortgage to be a valid first and subsisting Lien
on the property described therein, free and clear of all defects (including, but not limited to, mechanics’ and materialmen’s
Liens) and encumbrances, excepting Permitted Liens (including the encumbrances shown on the Mortgage Policy), and providing for
such other affirmative insurance as the Administrative Agent may deem reasonably necessary or desirable;


 


(d)American
Land Title Association/American Congress on Surveying and Mapping form surveys, for which all necessary fees (where applicable)
have been paid, and dated no more than 30 days before the recording of the Ohio Mortgage, certified to the Administrative Agent
and the issuer of the Mortgage Policies covering the Ohio Mortgage in a manner satisfactory to the Administrative Agent by a land
surveyor duly registered and licensed in the States in which the property described in such surveys is located and acceptable
to the Administrative Agent, showing all buildings and other improvements, any off-site improvements, the location of any easements,
parking spaces, rights of way, building set-back


 




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lines
and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other
defects, other than encroachments and other defects acceptable to the Administrative Agent;


 


(e)a
completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each
Mortgaged Property covered by the Ohio Mortgage (together with a notice about special flood hazard area status and flood disaster
assistance duly executed by the Borrower and each Loan Party relating thereto, if applicable);


 


(f)a
zoning report with respect to the real property secured by the Ohio Mortgage, in form and substance reasonably acceptable to the
Administrative Agent; and


 


(g)written
opinion(s) of counsel (including Ohio counsel) to the Loan Parties, regarding the Ohio Mortgage, addressed to the Administrative
Agent, the Collateral Agent and each Lender, in form and substance reasonably acceptable to the Administrative Agent.


 


6.17Zoning
Report. Within thirty (30) days of the Closing Date, deliver to the Administrative Agent a zoning report for the real property
secured by the Indiana Mortgage, in form and substance reasonably acceptable to the Administrative Agent.


 


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:


 


7.01Liens.
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 (each a “Permitted Lien”):


 


(a)Liens
pursuant to any Loan Document;


 


(b)Liens
existing on the date hereof and listed on Schedule 5.08 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;


 




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(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 Persons which, do not materially interfere with the ordinary conduct of the business of
the Borrower or 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 DP&L 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 DP&L 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;


 




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(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 (i) cash collateral deposited by the Borrower and its Subsidiaries with counterparties or (ii) assets of the Borrower
and its Subsidiaries that are not part of the Collateral, in connection with or arising out of a currency, interest rate or commodity
agreement or any transactions or arrangements entered into in connection with the hedging or management of risks relating to the
electricity or natural gas distribution industry, including a right of set off or right over a margin call account or any form
of cash or cash collateral or any similar arrangement for obligations incurred in respect of currency, interest rate or commodity
agreements;


 


(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;


 




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(u)Liens
on the Collateral incurred in connection with any Pari Secured Debt; provided however, at the time of the creation
of such Lien, (a) such Lien secures the Indebtedness under this Agreement on an equal and ratable basis, (b) no Default or Event
of Default shall exist immediately prior to or result therefrom, (c) all representations and warranties set forth in any Loan
Document are true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, true and correct
in all respects), (d) the Borrower and its Subsidiaries shall be in compliance with Section 7.11 after giving effect to
the proceeds of any such Pari Secured Debt and making such calculations as if such Pari Secured Debt was incurred on and as of
the first day of the relevant fiscal period, (e) the amount secured by the Lien shall not exceed the amount of the Indebtedness
(plus any accrued interest, fees, premiums and expenses associated therewith) being refinanced by such Pari Secured Debt, (f)
after giving effect to any such Pari Secured Debt and the application of the proceeds thereof, the aggregate amount of Indebtedness
secured by the Collateral shall not exceed the Borrowing Limit, (g) the Pari Secured Debt does not have (i) an earlier maturity
date or shorter weighted average life to maturity than the maturity date and weighted average life to maturity, respectively,
of the Term Loan Facility then outstanding), or (ii) more favorable covenants in favor of the holder of the Pari Secured Debt
(unless such covenants are also provided for the Lenders under this Agreement), (h) there are no obligors of the Pari Secured
Debt that are not Loan Parties hereunder, (i) the Pari Secured Debt is (i) subject to an intercreditor agreement between the obligee
of such debt and the Lenders on terms and conditions reasonably satisfactory to the Administrative Agent and not inconsistent
with the Loan Documents, and (ii) is not secured by any asset that is not Collateral, (j) such Lien shall be confirmed pursuant
to a duly executed, acknowledged and recorded Mortgage Supplement (as defined in the applicable Mortgage) and (k) Borrower shall
cause Guarantor to deliver to Collateral Agent an ALTA 11-06 modification endorsement to the applicable Title Policy (as defined
in the applicable Mortgage), dated as of the date of recording of such Mortgage Supplement, insuring the priority of the lien
of the applicable Mortgage over defects in or liens or encumbrances on title, except for those shown in the applicable Title Policy
and other Permitted Liens.


 


(v)Liens
on assets other than the Collateral, in addition to those listed above, provided that any such lien secures the Indebtedness
under this Agreement on an equal and ratable basis; and


 


(w)Liens
incurred by DPL Energy Resources, Inc. (“DPLER”) encumbering the accounts receivable of DPLER in connection
with non-recourse dispositions thereon or Liens incurred by DPLER to secure DPLER’s obligations to supply or provide power,
energy and other related services.


 


7.02Investments.
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;


 




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


 


(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 and the DP&L PNC Credit Facility, are 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 or any Subsidiary 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 is not greater than 0.67 to 1.00 and
(B) the ratio of Consolidated EBITDA to Consolidated Interest Charges is not less than 2.5 to 1.00, or (ii) the Borrower’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.


 




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7.03Fundamental
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 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.


 


7.04Dispositions.
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;


 




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


 


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


 


(f)Dispositions
of property (other than Collateral) 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, provided that after giving Pro Forma Effect to the Separation
Transactions, the Borrower is in compliance with the financial covenants in Section 7.11;


 


(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; and


 


(j)non-recourse
Dispositions by Subsidiaries of accounts receivable at face value for 100% cash consideration;


 


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


 


7.05Change
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.


 


7.06Transactions
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


 




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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
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 Borrower, 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.


 


7.07Burdensome
Agreements. Except with respect to (i) the Tax Exempt Agreements and the DP&L PNC Credit Facility and (ii) 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), 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.


 


7.08Swap 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.


 


7.09Use 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.


 


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


 


7.11Financial
Covenants. (a) Permit the ratio of Consolidated Total Debt to Consolidated EBITDA during any period of four consecutive fiscal
quarters of the Borrower, as of the end of any fiscal quarter of the Borrower, to be greater than the ratio set forth below opposite
such period:


 




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	Period	Maximum Ratio
	September 30, 2015 through December 31, 2018	7.25 to 1.00
	January 1, 2019 through December 31, 2019	6.25 to 1.00
	January 1, 2020 and afterward	5.75 to 1.00


 


(b)Permit
the ratio of Consolidated EBITDA to Consolidated Interest Charges during any period of four consecutive fiscal quarters of the
Borrower, as of the end of any fiscal quarter of the Borrower, to be less than the ratio set forth below opposite such period:


 


	Period	Minimum Ratio
	September 30, 2015 through December 31, 2018	2.10 to 1.00
	January 1, 2019 and afterward	2.25 to 1.00


 


7.12Tax
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 and the DP&L PNC Credit Facility, unless otherwise agreed
by the Arrangers in their reasonable discretion.


 


7.13Restricted
Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise)
to do so, or issue or sell any Equity Interests, except that:


 


(a)so
long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom,
the Borrower may declare and make (and each Subsidiary of the Borrower may declare and make to enable the Borrower to do the same),
directly or indirectly, Restricted Payments to AES so that AES may, and AES shall be permitted to, pay any Taxes which are attributable
to the Borrower’s Consolidated Net Income as part of a consolidated group;


 


(b)so
long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom,
DP&L  may declare and make Restricted Payments with respect to shares of DP&L preferred stock in accordance with
the terms thereof;


 


(c)any
Subsidiary may declare and make Restricted Payments to the Borrower or another Subsidiary and the Borrower and any Subsidiary
may declare and make any Restricted Payment as part of the Separation Transactions;


 


(d)the
Borrower or any Subsidiary may issue common stock or any similar equity interest; and


 


(e)so
long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom,
the Borrower or any Subsidiary may make any Restricted Payment or incur any obligation  (contingent or otherwise) to do so,
if at the time


 




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of
such action (and taking into account such action), either (i) (A) the ratio of Consolidated Total Debt to Consolidated Total Capitalization
is not greater than 0.67 to 1.00 and (B) the ratio of Consolidated EBITDA to Consolidated Interest Charges is not less than 2.5
to 1.00, or (ii) the Borrower’s senior unsecured long-term debt at the time of such action shall be at least Investment
Grade.


 


7.14Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except:


 


(a)Indebtedness
of the Borrower;


 


(b)Indebtedness
of a Subsidiary of the Borrower provided however, that the aggregate principal amount of Borrowed Money Debt of all Subsidiaries
shall not at any time be greater than the sum of (i) the aggregate principal amount of Borrowed Money Debt of all Subsidiaries
on the Closing Date plus (ii) the undrawn commitments under the DP&L PNC Credit Facility on the Closing Date; or


 


(c)
Guarantees of Pari Secured Debt by the Guarantor on terms substantially similar to the Guaranty.


 


7.15Amendments
of Organization Documents. Amend any of its Organization Documents in a way that is adverse to the interests of the Lenders
hereunder; provided that any change to the Organizational Documents of a Loan Party to change its name shall not be adverse to
the interest of the Lenders hereunder if the Borrower (a) provides 15 days written notice to the Collateral Agent within the occurrence
of such event, or such later date as the Collateral Agent may agree in its reasonable discretion, and (b) ensures that the Collateral
Documents remain in full force and effect and the Collateral is perfected with a first priority security or mortgage Lien, including
making any necessary filings, publications and registrations under the UCC or other applicable law.


 


7.16Sanctions.
Directly or indirectly, use the proceeds of any Credit Extension, or lend, contribute or otherwise make available such proceeds
to any Subsidiary, joint venture partner or other individual or entity, to fund any activities of or business with any individual
or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner
that will result in a violation by any individual or entity (including any individual or entity participating in the transaction,
whether as Lender, Arranger, Administrative Agent, L/C Issuer, Swing Line Lender, or otherwise) of Sanctions.


 


7.17Anti-Corruption
Laws. Directly or indirectly use the proceeds of any Credit Extension for any purpose which would breach the United States
Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions.


 


ARTICLE
VIII.EVENTS OF DEFAULT AND REMEDIES


 


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


 




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(a)Non-Payment.
The Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, any amount of principal of any Loan
or any L/C Obligation or (ii) within five days after the same becomes due, any interest on any Loan or on any L/C Obligation,
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), (b) or (i), 6.05 (solely with respect to the Loan Parties), 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 15 days; or


 


(d)Other
Defaults. Any Loan Party 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 such Loan Party; or


 


(e)Representations
and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith
shall be incorrect or misleading 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) Any Loan Party or any Subsidiary thereof (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 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 Loan Party or any Subsidiary thereof is the Defaulting Party (as defined in such Swap Contract) or (B)
any


 




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Termination
Event (as so defined) under such Swap Contract as to which the Loan Party or any Subsidiary is an Affected Party (as so defined)
and, in either event, the Swap Termination Value owed by the Loan Party or such Subsidiary as a result thereof is greater than
$50,000,000; or


 


(g)Insolvency
Proceedings, Etc. Any Loan Party or any of its Subsidiary thereof 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. Any Loan Party or any Subsidiary thereof becomes unable or admits in writing its inability to pay its debts
as they become due; or


 


(i)Judgments.
There is entered against any Loan Party or any Subsidiary thereof (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


 


(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 any
Loan Party or any other Person contests in any manner the validity or enforceability of any Loan Document; or any Loan Party denies
that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any Loan
Document; or


 




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(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 Borrower to secure its corporate obligations; or


 


(m)Adverse
PUCO Order. There occurs an Adverse PUCO Order and (i) Borrower fails to (A) apply for a rehearing of the Adverse PUCO Order
within thirty (30) days of the issuance of the Adverse PUCO Order and (B) exercise all procedural remedies, which are, in the
opinion of Borrower’s counsel, reasonably available to reverse, limit or stay the effectiveness of the Adverse PUCO Order,
(ii) (A) the request for a rehearing as applied for under clause (i)(A) above, is denied, or, if granted, the PUCO affirms the
Adverse PUCO Order, and (B) the Adverse PUCO Order has not been stayed by a court of competent jurisdiction within ten (10) Business
Days of the occurrence of either event described in clause (ii)(A) above, and (iii) if the Adverse PUCO Order is stayed according
to clause (ii)(B) above, a court or applicable regulatory authority dismisses such stay or rules that the Adverse PUCO Order will
be enforced; or


 


(n)Collateral
Documents. Any Collateral Document after delivery thereof pursuant to Section 4.01 shall for any reason (other
than pursuant to the terms thereof) cease to create a valid and perfected first priority Lien (subject to Liens permitted by Section
7.01) on the Collateral purported to be covered thereby.


 


8.02Remedies
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


 




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automatically become
effective, in each case without further act of the Administrative Agent or any Lender.


 


8.03Application
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:


 


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, the 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 the 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.


 


ARTICLE
IX.ADMINISTRATIVE AGENT


 




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9.01Appointment
and Authority. Each of the Lenders and the L/C Issuers hereby irrevocably appoints U.S. 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.


 


9.02Rights 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.


 


9.03Exculpatory
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, any information relating to the Borrower or any of its Affiliates that is communicated to


 




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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.


 


9.04Reliance
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.


 


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


 




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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.


 


9.06Resignation
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 U.S. 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.


 


9.07Non-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.


 


9.08No 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.


 


9.09Administrative
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.


 


9.10Collateral
Matters.


 


(a)Collateral
Agent. The Administrative Agent, each of the Lenders and the L/C Issuers hereby irrevocably appoints and authorizes U.S. Bank
National Association to act as the collateral agent under the Loan Documents for purposes of acquiring, holding and enforcing any
and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and
discretion as are reasonably incidental thereto. In this connection, the Collateral Agent and any co-agents, sub-agents and attorneys-in-fact
appointed by the Collateral Agent for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted
under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Collateral Agent,
shall be entitled to the benefits of all provisions of this Article IX and Article X (including Section 10.04(c),
as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Loan Documents) as if set forth
in full herein with respect thereto.


 


(b)Each of the Lenders
(including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the L/C Issuers irrevocably authorize
the Collateral Agent, at its option and in its discretion to release any Lien on any property granted to or held by the Collateral
Agent under any Loan Document, (i) upon termination of the Aggregate Commitments and payment in full of all Obligations (other
than indemnification obligations) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to
which other arrangements satisfactory to the Administrative Agent and the L/C Issuers shall have been made), (ii) that is sold
or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition
permitted hereunder or under any other Loan Document, (iii) at such times that the Borrower’s senior unsecured long-term
debt is considered Investment Grade or (iv) if approved, authorized or ratified in writing in accordance with Section 10.01;


 


(c)Each of the Lenders
(including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the L/C Issuers irrevocably authorize
the Collateral Agent, at its option and in its discretion to subordinate any Lien on any property granted to or held by the Collateral
Agent under any Loan Document to the holder of any Lien on such property that is permitted by Sections 7.01 (g), (i), (k) or
(r).


 




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(d)Upon request by
the Collateral Agent at any time, the Required Lenders will confirm in writing the Collateral Agent’s authority to release
or subordinate its interest in particular types or items of property. In each case as specified in this Section 9.10, the
Administrative Agent will, at the Borrowers’ expense, execute and deliver to the applicable Loan Party such documents as
such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest
granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations
under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section 9.10.


 


The Administrative
Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence,
value or collectability of the Collateral, the existence, priority or perfection of the Administrative Agent’s Lien thereon,
or any certificate prepared by any Loan Party in connection therewith, nor shall the Administrative Agent be responsible or liable
to the Lenders for any failure to monitor or maintain any portion of the Collateral.


 


ARTICLE
X. MISCELLANEOUS


 


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


 


(a)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 (excluding mandatory prepayments) of principal, interest,
fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent
of each Lender directly affected thereby;


 


(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;


 




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


 


(f)unless
otherwise permitted herein, release all or substantially all of the Collateral in any transaction or series of related transactions,
without the written consent of each Lender; or


 


(g)unless
otherwise permitted herein, release all or substantially all of the value of the Guaranty, 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.


 


10.02Notices;
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 U.S. 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


 




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(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 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


 




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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).


 


(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.


 


10.03No 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 or under any other Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided, and provided under each other Loan Document are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.


 




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Notwithstanding anything
to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under
the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings
at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance
with Section 8.02 for the benefit of all the Lenders and the L/C 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 benefit (solely in its capacity as an L/C Issuer or Swing
Line Lender, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in
accordance with Section 10.08 (subject to the terms of Section 2.13), or (d) any Lender from filing proofs of claim
or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor
Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder
and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative
Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in clauses (b), (c) and (d) of the preceding
proviso and subject to Section 2.13, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies
available to it and as authorized by the Required Lenders.


 


10.04Expenses;
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”)


 




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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 any Loan Party arising out of, in connection with, or as a result of (i) the execution
or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated
hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration
of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 3.01), (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by the 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 or any other Loan Party against an Indemnitee
for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower or such
Loan Party has obtained a final and 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).


 




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(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 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 U.S. 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.


 


10.05Payments
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.


 


10.06Successors
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


 




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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 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


 




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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 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


 




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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 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


 




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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 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


 




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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 or central bank; provided that no such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.


 


(g)Resignation
as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time
U.S. Bank National Association assigns all of its Commitment and Loans pursuant to subsection (b) above, U.S. 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 U.S. Bank National Association as
L/C Issuer or Swing Line Lender, as the case may be. If U.S. 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 Revolving Credit Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If U.S. 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 Revolving Credit 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 U.S. Bank National
Association to effectively assume the obligations of U.S. Bank National Association with respect to such Letters of Credit.


 


10.07Treatment
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


 




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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 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 Section
2.17 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.


 


10.08Right 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


 




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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 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.


 


10.09Interest
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.


 


10.10Counterparts;
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


 




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imaging means shall
be effective as delivery of a manually executed counterpart of this Agreement.


 


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


 


10.12Severability.
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.


 


10.13Replacement
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);


 




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(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;


 


(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.


 


10.14Governing
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


 




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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 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.


 


10.15Waiver
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.


 


10.16No 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, the Arrangers, and the
Lenders 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


 




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contemplated hereby
and by the other Loan Documents; (ii) (A) the Administrative Agent. each Arranger and the Lenders 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, any Arranger, nor any Lender has any obligation to the Borrower or any of its Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative
Agent, each Arranger, the Lenders, and their respective Affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Borrower and its Affiliates, and neither the Administrative Agent, any Arranger,
nor any Lender has any obligation to disclose any of such interests to the Borrower or its Affiliates. To the fullest extent permitted
by law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent, any Arranger and
the Lenders with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction
contemplated hereby.


 


10.17Electronic
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.


 


10.18USA 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.]


 




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


 


DPL INC.


 


By: /s/ Jeffrey K. MacKay





Name:Jeffrey K. MacKay


Title:   Treasurer


 


 





 


 


DPL Inc.


CREDIT AGREEMENT


Signature Page


 


 




    	 



    	 



    

U.S.
Bank NATIONAL ASSOCIATION, as Administrative
Agent, Collateral Agent, an L/C Issuer and as a Lender


 


By: /s/ John M. Eyerman





Name: John M. Eyerman





Title: Vice President


 


 


 


 





DPL Inc.


CREDIT AGREEMENT


Signature Page


 



 




    	 



    	 



    

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


 


By: /s/ Patrick Engel





Name: Patrick Engel





Title: Director


 


 


 


 





DPL Inc.


CREDIT AGREEMENT


Signature Page


 



 




    	 



    	 



    

PNC BANK, NATIONAL ASSOCIATION,
as Syndication Agent, an L/C Issuer and as a Lender


 


By: /s/ Tracy J. Venable_________





Name: Tracy J. Venable





Title: Senior Vice President


 


 


 


 





DPL Inc.


CREDIT AGREEMENT


Signature Page


 



 




    	 



    	 



    

MORGAN STANLEY BANK, N.A.,
as a Lender


 


By: /s/ Michael King





Name: Michael King





Title: Authorized Signatory


 


 


 


 





DPL Inc.


CREDIT AGREEMENT


Signature Page


 



 




    	 



    	 



    

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


 


By: /s/ Juan Javellana





Name: Juan Javellana





Title: Executive Director


 


 


 


 





DPL Inc.


CREDIT AGREEMENT


Signature Page


 



 




    	 



    	 



    

SUNTRUST BANK, as a Lender


 


By: /s/ Andrew Johnson 


Name: Andrew Johnson





Title: Director


 


 


 


 





DPL Inc.


CREDIT AGREEMENT


Signature Page


 



 


 




    	 



    	 



    

BMO HARRIS BANK, NA, as a Lender


 


By: /s/ Betsy Phillips





Name: Betsy Phillips





Title: Vice President


 


 


 


 





DPL Inc.


CREDIT AGREEMENT


Signature Page


 



 




    	 



    	 



    

THE HUNTINGTON NATIONAL BANK,
as a Lender


 


By: /s/ Joshua D. Elsea 


Name: Joshua D. Elsea





Title: Vice President


 







 


 


 





DPL Inc.


CREDIT AGREEMENT


Signature Page